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UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN 


RACE DISTINCTIONS 
IN AMERICAN LAW 


BY 


GILBERT THOMAS STEPHENSON, A.M., LL.B. 


NEW YORK AND LONDON 
D. APPLETON AND COMPANY 
1910 


CopyricHT, 1910, By 


D. APPLETON AND COMPANY 


Published September, 1910 


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FATHER AND MOTHER 


SRGMIO Mociarg 1.355 


171126 


PREFACE 


Es 


AMERICA has to-day no problem more perplexing and 
disquieting than that of the proper and permanent rela- 
tions between the white and the colored races. Although 
it concerns most vitally the twenty millions of Caucasians 
and the eight millions of Negroes in eleven States of the 
South, still it is a national problem, because whatever 
affects one part of our national organism concerns the 
whole of it. Although this question has been considered 
from almost every conceivable standpoint, few have turned 
to the laws of the States and of the Nation to see how 
they bear upon it. It was with the hope of gaining new 
light on the subject from this source that I undertook the 
present investigation. 

I have examined the Constitutions, statutes, and judi- 
cial decisions of the United States and of the States and 
Territories between 1865 and the present to find the laws 
that have made any distinctions between persons on the 
basis of race. Reference has been made to some extent 
to laws in force before 1865, but only as the background 
of later legislation and decision. In order to make this 
study comparative as well as special, the writer has aban- 
doned his original plan of confining it to the Southern 
States and laws applicable only to Negroes, and has ex- 

vil 


PREFACE 


tended it to include the whole United States and all 
the races. | 

Immediately after the Negro became a free man in 
1865, the Federal Government undertook, by a series of 
constitutional amendments and statutory enactments, to 
secure to him all the rights and privileges of an American 
citizen. My effort has been to ascertain how far this at- 
tempt has been successful. The inquiry has been: After 
forty-five years of freedom from physical bondage, how 
much does the Negro lack of being, in truth, a full-fledged 
American citizen? What limitations upon him are allowed 
or imposed by law because he is a Negro? 

This is not meant, however, to be a legal treatise. 
Although the sources are, in the main, constitutions, stat- 
utes, and court reports, an effort has been made to state 
the principles in an untechnical manner. Knowing that 
copious citations are usually irksome to those who read for 
general information, I have relegated all notes to the ends 
of the chapters for the benefit of the more curious reader 
who often finds them the most profitable part of a book. 
There he will find citations of authorities for practically 
every important statement made. . 

All the chapters, except the last two, were published 
serially in The American Law Review during the year 
1909. The substance of the chapter on “ Separation of 
Races in Public Conveyances” was published also in The 
American Political Science Review for May, 1909. 

I wish that I could make public acknowledgment of 
my indebtedness to all who have helped me in the prep- 
aration of this volume. Hundreds of public officials in the 
South—mayors of cities, clerks of courts, attorneys-gen- 

Vill 


PREFACE 


eral, superintendents of public instruction, etc.—have re- 
sponded generously to my requests for information. I am 
thankful to Mr. John H. Arnold, Librarian of the Har- 
vard Law School, for access to the stacks of that library, 
without which privilege my work would have been greatly 
delayed, and to his assistants for their uniform courtesy 
while I was making such constant demands upon them. 
J am under especial obligation to Professor Albert Bush- 
nell Hart, of Harvard University, for his direction and 
assistance in my examination of the sources and his valu- 
able advice while I have been preparing the material for 
publication in this form; also to Mr. Charles E. Grin- 
nell, former Editor of The American Law Review, for 
his encouragement and suggestions during the preparation 
of the articles for his magazine. Lastly, I would express 
my gratitude to Mr. Charles Vernon Imlay, of the New 
York Bar, the value of whose painstaking help in the re- 
vision of the manuscript of this book is truly inestimable. 


GILBERT THOMAS STEPHENSON. 


WaRREN Piact, PENDLETON, N. C. 
June 1, 1910. 


CONTENTS 


CHAPTER I 


INTRODUCTORY . : ; i , 
What is a Race Distinction in Law 
Distinctions and Discriminations Contrasted 
Legal and Actual Distinctions 
All Race Elements Included : ‘ 
Period Covered from 1865 to Present 


CHAPTER II 


Wuat is A Necro? 


Legal Definition of Negro 
Proper Name for Black Men in nenien 


CHAPTER III 


DEFAMATION TO CALL A WHITE PERSON A NEGRO 


CHAPTER IV 


THe ‘‘Buack Laws” oF 1865-68 


“Black Laws” of Free States : 

Restrictions upon Movement of Negroes 

Limitations upon Negroes in Respect to Coennmcne 
Sale of Firearms and Liquor to Negroes 

Labor Contracts of Negroes . 

Apprentice Laws 

Vagrancy Laws 

Pauper Laws 


xl 


12-25 
12 
20 


. 26-34 


. 30-66 


CONTENTS 


CHAPTER V 
: PAGE 
RECONSTRUCTION OF MariTAL RELATIONS . ... 67-77 
Remarriages . ; f ; ‘ etn ; a bane, MORE 
Certificates of Marriage. .. PN Mh eer ei! 
Slave Marriages Declared Legal ee Satta ta: a) eee 
Marriages Between Slaves and Free Negroes . . . 74 
Federal Legislation . : : k . : ; : 5 rate 
CHAPTER VI 
INTERMARRIAGE AND MISCEGENATION Si ot Rede Sa Sinem 
Intermarriage During Reconstruction. . — 5 ARR Re ee 
Present State of the Law Against Infermarriage ORS 
"u« To Whom the Laws Apply i V0 )) Ns oe ae ae ee 
Ty ttect of Attempted Intermarriage . ... Q yepait= 3 
Punishment for Intermarriage . . .° .  . . 84 
Punishment for Issuing Licenses . ; : “ j Pritam. 
Punishment for Performing the Ceremony. . . . 87 
Cohabitation Without Intermarriage . . . . . 8&8 
States Repealing Laws Against Intermarriage . : 89 
Marriages Between the Negro and Non-Caucasian Races 90 
Effect Given to Marriages in Other States . é : pate 
Intermarriage and the Federal Constitution . su as 
Intermarriages in Boston WAN aa Hash am) YA Fatal ape RR aa 
. CHAPTER VII 
CrviL. Ricurs| or NmeGRoms 2)) ose. Ped. eas 
Federal Civil Rights Legislation . : : ; en Ae 
State Legislation Between 1865 and 1883 . Ae Sr viogectn isl 
In States Outside: of South 0707) aa aa 
In South 051"; PMA MarR aa eed) ei gne BBS 
State Legislation After 1883 . RUMP mURS LIZ tia k, Ca ame ha 
In South . . (hit ACERS CLE Se ene a ea 
In States Outside of South ENS et RAAT OS RD eee eon Re 
Hotels : : j : a iBlRh 2g gO dlgs Az ER Maetan Sead 2 Seca ok core 
Restaurants. : ; Bf inn PNA g Ss aa asp tn gee Beit -e¢ 
Barber-shops  . : : : 4 ; ; j : ae 2) 


xii 


CONTENTS 


PAGE 
BOotDlack’ Stands myers een ety Maen aie varia NB ln OBER 
Billiard-rooms . j i ; anton cie te oti : : . 131 
Saloons. P ; , ‘ Sra ES Py AE ‘ Ane th pe 
Soda Fountains j ‘ : : : : : Tig OO 
Theatres . : 5 é p : J ; ‘ Sinisa a Bs 
ele ha TT 1 awh 9) 4. Aan nse ASN CORAM 7a co0y WRU HB ee 
Cemeteries : ; : . 186 
Race iecdinination by iredrancs Gompanee AES ow MTD DW RS ts 
Race Discriminations by Labor Unions . : : . 140 
Churches . e : : , : \ 5; Pe Lat 
Negroes in the Militia : SUTRAS SC APM oc C2 a 
Separation of State Dependents . . . . . . 146 
CHAPTER VIII 
SEPARATION OF Races IN ScHoors . . . . . .. 154-206 
Berea College Affair Lr ala 154 
Exclusion of Japanese from Public Schools of Bal a 
cisco . : . 159 
Dr. Charles W. Eliot on Reparation of Rae in ‘Sohanis “P63 
Separation Before 1865 . Lee ae erty LOO 
Present Extent of Separation in Bupts Sehoola: ’ ae tO 
In South . : ‘ : : : ‘ LTO 
In States Outside ab South Urata er ahs, AUG Aa Wit ns s Sea NET 
Separation in Private Schools . . . . .  . 190 
Equality of Accommodations at neve ch ae eae Syste el he 
Division of Public School Fund . . . . .  . 194 
CHAPTER IX 
SEPARATION OF Races IN PuBLic CONVEYANCES .  . 207-236 
Origin of ‘Jim Crow” . , : NUP AV 
Development of Legislation Bribe to 1875. BU heh cay Bs: 
Legislation Between 1865 and 1881 . 5 SO ies e2il 
Separation of Passengers on Steamboats . pated aC! 
Separation of Passengersin Railroad Cars. . . . 216 
Interstate and Intrastate Travel . A yk LOAN ARH BY 
Slsening: Cara neu iank ) hr Mors elome hMPy RS PRO RIMEA  Seiguiiulea i) LG 
Waiting-Rooms . : k , . 220 
Trains to which Laws a6 not ‘holy SE NA OGM A cee ap+-5 fi 


xiil 


CONTENTS 


Passengers to whom Law does not Apply . 


Nature of Accommodations 

Means of Separation 

Designation of Separation 

Punishment for Violating Law 

Separation of Postal Clerks 
Separation of Passengers in Street Cars 

Present Extent of Separation 

Method of Separation 

Enforcement of Laws 

Exemptions 


CHAPTER X 
Necro 1n Court Room 


As Spectator 
As Judge 
As Lawyer 
As Witness 
As Juror . A \ 
Actual Jury Berries by N egroes in PGouth 
Separate Courts Ronee 
Different Punishments 


CHAPTER XI 


SUFFRAGE . : 
Negro Suffrage Before 1865 : 
Suffrage Between 1865 and 1870 . 
Suffrage Between 1870 and 1890 . 
Southern Suffrage Amendments Since 1890 
Citizenship 
Age 
Sex 
Residence . : 
Payment of Taxes 
Ownership of Property 
Educational Test 
‘Grandfather Clauses”’ 
“Understanding and Character Clauses? 
Persons Excluded from Suffrage 


X1V 


PAGE 


222 
223 
224 
225 
225 
227 
227 
228 
229 
231 
232 


237-280 


237 
238 
239 
241 
247 
253 
272 
273 


281-347 
282 
285 
288 
294 
296 
297 
298 
298 
299 
300 
301 
305 
308 


310 "4 


CONTENTS 


PAGE 
Suffrage in Insular Possessions of United States 312 
Constitutionality of Suffrage Amendments 313 
Maryland and Fifteenth Amendment . 317 
Extent of Actual Disfranchisement : 320 _— 
Qualifications for Voting in the United States 322 
CHAPTER XII 
Race Distinctions versus Race DISCRIMINATIONS . 348-862 
Race Distinctions not Confined to One Section 348 
Race Distinctions not Confined to One Race 350 
Race Distinctions not Decreasing 351 
Distinctions not Based on Race Superiority 353 
Solution of Race Problem Hindered by Multiplicity of 
Proposed Remedies . : . : : 354 
Search for a Common Platform 355 
Proper Place of Race Distinctions 356 
Obliteration of Race Discriminations . 358 
TABLE OF Cases CITED 363 
INDEX 369 


RACE DISTINCTIONS IN. 
AMERICAN LAW 


CHAPTER I 
INTRODUCTORY 


WHAT IS A RACE DISTINCTION IN LAW? 


A RACE distinction in the law is a requirement imposed 
by statute, constitutional enactment, or judicial decision, 
prescribing for a person of one Tace a rule of conduct 
different from that prescribed for a person of another race. 
If, for instance, a Negro is required to attend one public 
school, a Mongolian another, and a Caucasian a still dif- 
ferent one, a race distinction is created, because the per- 
son must regulate his action accordingly as he belongs to 
one or another race. Or, if a person, upon entering a 
street car, is required by ordinance or statute to take a seat 
in the front part of the car if he is a Caucasian, but in 
the rear if he is a Negro, this rule is a race distinction 
recognized by law. Again, a race distinction is made by 
the law when intermarriage between Negroes and Cau- 
casians is prohibited. 

Distinctions in law have been made on grounds other 
than race. Thus, in those States in which men may vote 
by satisfying the prescribed requirements, but in which 
women may not vote under any circumstances, the law 

2 1 


INTRODUCTORY 


creates a distinction on the basis of sex. Laws forbid- 
ding persons under seven years of age from testifying in 
court and laws exempting from a poll tax persons under 
twenty-one years of age give rise to age distinctions. 
Other instances might be cited, but only race distinctions 
have a place here. 


DISTINCTIONS AND DISCRIMINATIONS CONTRASTED 


It is important, at the outset, to distinguish clearly 
between race distinctions and race discriminations; more 
so, because these words are often used synonymously, es- 
pecially when the Negro is discussed. A distinction be- 
tween the Caucasian and the Negro, when recognized and 
enforced by the law, las been interpreted as a discrim- 
ination against the latter. Negroes have recognized that 
they are the weaker of the two races numerically, except 
in the Black Belt of the South, and intellectually the less 
developed. Knowing that the various race distinctions - 
have emanated almost entirely from white constitution- 
makers, legislators, and judges, they regard these dis- 
tinctions as expressions of the aversion on the part of the 
Caucasian to association with the Negro. Naturally, 
therefore, they have resented: race distinctions upon the 
belief and, in many instances, upon the experience that 
they are equivalent to race discriminations. 

In fact, there is an essential difference between race 
distinctions and race discriminations. North Carolina, for — 
example, has a law that white and Negro children shall 
not attend the same schools, but that separate schools shall 
be maintained. If the terms for all the public schools 

2 


DISTINCTIONS AND DISCRIMINATIONS 


in the State are equal in length, if the teaching force is 
equal in numbers and ability, if the school buildings are 
equal in convenience, accommodations, and appointments, 
a race distinction exists but not a discrimination. Iden- 
tity of accommodation is not essential to avoid the charge 
of discrimination. If there are in a particular school dis- 
trict twice as many white children as there are Negro chil- 
dren, the school building for the former should be twice 
as large as that for the latter. The course of study need 
not be the same. If scientific investigation and experience 
show that in the education of the Negro child emphasis 
should be placed on one course of study, and in the educa- 
tion of the white child, on another; it is not a discrimina- 
tion to emphasize industrial training in the Negro school, if 
that is better suited to the needs of the Negro pupil, and 
classics in the white school if the latter course is more 
profitable to the white child. There is no discrimina- 
tion so long as there is equality of opportunity, and this 
equality may often be attained only by a difference in 
methods. 

On the other hand, if the term of the Negro school 
is four months, and that of the white, eight; if the teach- 
ers in the Negro schools are underpaid and inadequately 
or wrongly trained, and the teachers of the white schools 
are well paid and well trained; if Negro children are 
housed in dilapidated, uncomfortable, and unsanitary 
buildings, and white children have new, comfortable, and 
sanitary buildings; if courses of study for Negro children 
are selected in a haphazard fashion without any regard 
to their peculiar needs, and a curriculum is carefully 
adapted to the needs of white children; if such condi- 

3 


INTRODUCTORY 


tions exist under the law, race distinctions exist which 
are at the same time discriminations against Negroes. 
Where the tables are turned and Negro children are ac- 
corded better educational advantages than white, the dis- 
criminations are against Caucasians. 

A law of Virginia requires white and Negro passen- 
gers to occupy separate coaches on railroad trains. If the 
coaches for both races are equally clean, equally com- 
fortable, and equally well appointed; if both races are 
accorded equally courteous service by the employees of the 
railroad; if, in short, all the facilities for travel are equal 
for both races, race distinctions exist but not race discrimi- 
nations. The extent of accommodations need not be iden- 
tical. The railroad company, for instance, need furnish 
only the space requisite for the accommodation of each 
race. If, however, the white passengers are admitted to 
clean, well-lighted, well-ventilated coaches and Negroes, 
to foul, unclean, uncomfortable coaches; if white coaches 
are well-policed, while Negro passengers are subjected to 
the insults of disorderly persons; if, in other words, the 
Negro passenger does not receive as good service for his 
fare as the white, a discrimination against the Negro is 
made under the guise of a legal distinction. 

In like manner, one might consider each of the race 
distinctions recognized in the law and show how it may 
be applied so as not to work a discrimination against either — 
race and, as easily, how it may be used to work an injustice 
to the weaker race. A race distinction connotes a differ- 
ence and nothing more. A discrimination necessarily im- 
plies partiality and favoritism. 


4 


LEGAL AND ACTUAL DISTINCTIONS 


LEGAL AND ACTUAL DISTINCTIONS 


There is a difference between actual race distinctions 
—those practiced every day without the sanction of law— 
and legal race distinctions—those either sanctioned or 
required by statutes or ordinances. Law is crystallized 
custom. Race distinctions now recognized by law were 
habitually practiced long before they crystallized into 
statutes. Thus, actual separation of races on railroad 
coaches—if not in separate coaches, certainly in separate 
seats or portions of the coach—obtained long before the 
“ Jim Crow” laws came into existence. Moreover, mis- 
cegenation was punished before the legislature made it 
a crime. Some race distinctions practiced to-day will 
probably be sanctioned by statute in the future ; others will 
persist as customs. In some Southern cities, for instance, 
there are steam laundries which will not accept Negro 
patronage. Everywhere in the South and in many places 
in other sections, there are separate churches for the races. 
It is practically a universal custom among the white peo- 
ple in the South never to address a Negro as “ Mister” or 
“ Mistress.” ‘This custom obtains to some extent elsewhere. 
Thus, in a recent case before a justice of the peace in Dela- 
ware in which the parties were Negroes, one of them 
insisted upon speaking of another Negro as “ Mister.” 
The justice forbade him so to do, and, upon his persisting, 
fined him for contempt. Yet, these distinctions and many 
others that might be cited are not required by law, and 
some of them, if expressed in statutes, would be uncon- 
stitutional. 

Most race distinctions,however, are still uncrystallized. 

P | 


INTRODUCTORY 


But these will be mentioned merely for illustration, since 
the purpose here is to discuss only those distinctions which 
have been expressed in constitutions, statutes, and judicial 
decisions. Mr. Ray Stannard Baker in his “ Following 
the Colour Line,” * has admirably depicted actual race re- 
lations in the United States. He has gone in person out 
upon the cotton plantations of the Lower South; into the 
Negro districts of cities in the South, East, and North; 
into schools, churches, and court rooms; and has described 
how the Negro lives, what he does, what he thinks about 
himself and about the white man, and what the white man 
thinks about him. By studying the race distinctions he 
describes from the other standpoint suggested—that is, 
by tracing their gradual crystallization into statutes and 
judicial decisions, a better understanding may be had of 
race distinctions in general. | 


ALL RACE ELEMENTS INCLUDED 


Attention will be directed not only to the Negro but 
to other races in the United States—the Mongolian in 
the Far West and the Indian in the Southwest. Of course, 
by far the largest race element after the Caucasian is the 
Negro with its 8,833,994 people of whom eighty-four and 
seven-tenths per cent. are in the thirteen States of the 
South. But it will be found that in those sections where 
the Indians have existed or still exist in appreciable num- 
bers and come into association with the Caucasian—that 
is, where they do not still maintain their tribal relations 
—race distinctions have separated these two races. This 
is equally true of the Japanese and Chinese in the Pacific 

6 


f , 


PERIOD COVERED FROM 1865 TO PRESENT 


States. Most of the discussion will necessarily be of the 
distinctions between Caucasians and Negroes, but as dis- 
tinctions applicable to Mongolians and Indians arise, they 
will be mentioned to show that race consciousness is not 
confined to any one section or race. 


PERIOD COVERED FROM 1865 TO PRESENT 


Race distinctions have existed and have been recog- 
nized in the law from the beginning of the settlement of 
the New World, long before the thirteen colonies became 
free and independent States, or before the Federal Consti- 
tution was adopted.. The first cargo of Negroes was 
landed in Virginia in 1619, only twelve years after the 
founding of Jamestown. In 1630, eleven years later, the 
Virginia Assembly passed the following resolution: ? 
“ Hugh Davis to be soundly whipped before an assembly 
of Negroes and others, for abusing himself to the dishonor 
of God and the shame of Christians, by defiling his body 
in lying with a Negro.” Many of the Colonies—later 
States—prohibited intermarriage between Caucasians and 
Negroes whether the latter were slave or free. The Colo- 
nies and States prohibited or limited the movements of 
free Negroes from one colony or State to another, pre- 
scribed special punishment for adultery between white per- 
sons and Negroes, forbade persons of color to carry fire- 
arms, and in divers other ways restricted the actions of 
Negroes. 

It is not so profitable, however, at this day to study 
these early distinctions, for the distinctions based on race 
were then inseparably interwoven with those based on the 

7 


INTRODUCTORY 


state of slavery. Thus, it is impossible to say whether 
a law was passed to regulate a person’s actions because he 
was a Slave or because he was of the Negro race. More- 
over, the laws relating to race and slave distinctions prior 
to 1858 were compiled by John Codman Hurd in his two- 
volume work entitled “The Law of Freedom and Bondage 
in the United States,” published in 1858. Any attempt 
at a further treatment of the period covered by that work 
would result only in a digest of a multitude of statutes, 
most of which have been obsolete for many years. But 
a greater reason for the futility of a discussion of race dis- 
tinctions before 1865 is that prior to that date, as it has 
been so often expressed, the Negro was considered to have 
no rights which the white man was bound to respect. The 
Dred Scott decision * in 1857 virtually held that a slave 
was not a citizen or capable of becoming one, and this 
dictum, unnecessary to the decision of the case, did much, 
says James Bryce,* “ to precipitate the Civil War.” If the 
Negro could enjoy only licenses, claiming nothing as of 
right, it is not very valuable to study the distinctions 
which the master imposed upon him. 

The year 1865 marked the beginning of the present era 
in race relations. It was in that year that the Negro be- 
came a free man, and that the Federal Government under- 
took by successive legislative enactments to secure and 
guarantee to him all the rights and privileges which the 
Caucasian race had so long enjoyed as its inalienable 
heritage. 

The Emancipation Proclamation of 1862, issued as 
a military expedient, declared that, unless the seceding 
States were back in the Union by January 1, 1863, all 

8 


PERIOD COVERED FROM 1865 TO PRESENT . 


slaves in those States should be emancipated. This did 
not apply to the Union States, as Delaware, which still 
had slaves. But immediately upon the cessation of hos- 
tilities, Congress set to work to make emancipation gen- 
eral throughout the Union and to give the Negro all the 
rights of a citizen. The Thirteenth Amendment to the 
Constitution, ratified December 18, 1865, abolished slavery 
and involuntary servitude except as a punishment for 
crime. The foilowing April, the first Civil Rights Bill ® 
was passed, which declared that “all persons born in the 
United States and not subject to any foreign power, ex- 
cluding Indians not taxed, are hereby declared to be citi- 
zens of the United States; and such citizens, of every race 
and color, without regard to any previous condition of 
slavery or involuntary servitude, except as a punishment 
for crime . . . shall have the same right, in every State 
and Territory in the United States, to make and enforce 
contracts, to sue, . . . and to full and equal benefit of all 
laws and proceedings in the security of persons and prop- 
erty, aS is enjoyed by white citizens, and shall be sub- 
ject to like punishments and penalties, and to none 
piers 2 

These rights were enlarged by the Fourteenth Amend- 
ment, ratified in 1868, which provides that: “ All persons 
born or naturalized in the United States, and subject to 
the jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside. No State shall 
make or enforce any law which shall abridge the privileges 
and immunities of citizens of the United States; nor shall 
any State deprive any person of life, liberty, or property 
without due process of law; nor deny to any person within 

9 


INTRODUCTORY 


its jurisdiction the equal protection of the laws.” Though 


> is not mentioned in this Amendment 


the word “ Negro’ 
nor in any of the subsequent Federal enactments, it is not 
open to dispute that the legislators had in mind primarily 
the protection of the Negro. 

Under the Fourteenth Amendment, the Civil Rights 
Bill of 1866 was reénacted ® in 1870, with the addition that 
it extended to all persons within the jurisdiction of the 
United States, and that it provided that all persons should 
be subject to like taxes, licenses, and exactions of every 
kind. | 

The same year, 1870, the Fifteenth Amendment was 
ratified, which declared that the right of citizens of the 
United States to vote should not be denied or abridged 
by the United States or by any States on account of race, 
color, or previous condition of servitude. 

The Civil Rights Bill’? of 1875, the most sweeping of 
all such legislation by Congress, declared that all persons 
within the jurisdiction of the United States should be 
entitled to the full and equal enjoyment of the accommo- 
dations, advantages, facilities, and privileges of inns, pub- 
lic conveyances on land or water, theatres, and other 
places of public amusement; subject only to the condi- 
tions and limitations established by law, and applicable 
alike to citizens of every race and color, regardless of any 
previous condition of servitude. It also provided that 
jurors should not be excluded on account of race, color, 
or previous condition of servitude. 

An enumeration of these Federal statutes and consti- 
tutional amendments has been made in order to show 
the efforts of Congress to secure to the Negro every civil 

10 


NOTES 


and political right of a full-fledged citizen of the United 
States. Later they will be discussed in detail. By the 
Civil Rights Bill of 1875, Congress apparently intended 
to secure not only equal but identical accommodations in 
all public places for Negroes and Caucasians. If one 
looks only upon the surface of these several legislative 
enactments, it would seem impossible to have a race dis- 
tinction recognized by law which did not violate some 
Federal statute or the Federal Constitution. But the suc- 
ceeding pages will show that, under the shadow of the 
statutes and the Constitution, the legislatures and courts 
of the States have built up a mass of race distinctions 
which the Federal courts and Congress, even if so inclined, 
are impotent to attack. | 


NOTES 


1 Doubleday, Page & Co., 1908. 

21 Hen. 146, quoted in Hurd’s “ Law of Freedom and 
Bondage,” I, p. 229. 

319 How. 393 (1857). 

4“ American Commonwealth,” I, p. 257. 

§14 Stat. L., 27, chap. 31. 

$16 Stat. L., 144, chap. 114. 

718 Stat. L., 335, chap. 114. 


CHAPTER II 
“ WHAT IS A NEGRO? 


LEGAL DEFINITION OF NEGRO 


“T HAD not been long engaged in the study of the race 
problem when I found myself face to face with a curious 
and seemingly absurd question: ‘What is a Negro?’” 
said Mr. Baker. 

Absurd as the question apparently is, it is one of the 
most perplexing and, at times, most embarrassing that has 
faced the legislators and judges. | 

If race distinctions are to be recognized in the law, it 
is essential that the races be clearly distinguished from 
one another. If a statute provides that Negroes shall ride 
in separate coaches and attend separate schools, it is nec- 
essary to decide first who are included under the term 
“Negroes.” It would seem that physical indicia would 
be sufficient, and, in most instances, this is true. It is 
never difficult to distinguish the full-blooded Negro, In- 
dian, or Mongolian one from the other or from the Cau- 
casian. But the difficulty arises in the blurring of the 
color line by amalgamation. The amount of miscegena- 
tion between the Mongolian and other races represented 
in the United States is negligible; but the extent of in- 
termixture between the Caucasian and the Negro, the 

12 


LEGAL DEFINITION OF NEGRO 


Negro and the Indian, and the Caucasian and the Indian 
is appreciable, and problems arising from it are serious. 

It is absolutely impossible to ascertain the number of 
mulattoes—that is, persons having both Caucasian and 
Negro blood in their veins—in the United States. Mr. 
Baker * says: “I saw plenty of men and women who were 
unquestionably Negroes, Negroes in every physical char- 
acteristic, black of countenance with thick lips and kinky 
hair, but I also met men and women as white as I am, 
whose assertions that they were really Negroes I accepted 
in defiance of the evidence of my own senses. I have seen 
blue-eyed Negroes and golden-haired Negroes; one Negro 
girl I met had an abundance of soft, straight, red hair. 
I have seen Negroes I could not easily distinguish from 
the Jewish or French types; I once talked with a man 
I took at first to be a Chinaman but who told me he was 
a Negro. And I have met several people, passing every- 
where for white, who, I knew, had Negro blood.” 

A separate enumeration of mulattoes has been made 
four times—in 1850, 1860, 1870, and 1890 respectively. 
The census authorities themselves said that the figures 
were of little value, and any attempt to distinguish Ne- 
groes from mulattoes was abandoned in the census of 1900. 
If a person is apparently white, the census enumerator will 
feel a delicacy in asking him if he has Negro blood in his 
veins. If the enumerator does ask the question and if 
the other is honest in his answer, it is often that the lat- 
ter does not know his own ancestry. Dr. Booker T’. Wash- 
ington, for instance, has said that he does not know who 
his father was.* Marital relations among Negroes during 
slavery were so irregular, and illicit intercourse between 

13 


WHAT IS A NEGRO? 


white men and slave women was so common that the line 
of ancestry of many mulattoes is hopelessly lost. But Mr. 
Baker makes the rough estimate, which doubtless is sub- 
stantially correct, that 3,000,000 of the 10,000,000 (circa) 
Negroes are visibly mulattoes. This one third of the 
total Negro population represents every degree of blood, 
of color, and of physical demarcation from the fair com- 
plexion, light hair, blue eyes, thin lips, and sharp nose 
of the octoroon, who betrays scarcely a trace of his Negro 
blood, to the coal-black skin, kinky hair, brown eyes, thick 
lips, and flat nose of the man who has scarcely a trace of 
Caucasian blood. It is this gradual sloping off from one 
race into another which has made it necessary for the law 
to set artificial lines. : 
The difficulty arising from the intermixture of the 
races was realized while the Negro was still a ‘slave. 
Throughout the statutes prior to 1860, one finds refer- 
ences to “persons of color,” a generic phrase including 
all who were not wholly Caucasian or Indian. This ante- 
bellum nomenclature has been brought over into modern 
statutes. It is surprising te find how seldom the word 
““ Negro” is used in the statutes and judicial decisions. 
Some States have fixed arbitrary definitions of “ per- 
sons of color,” “ Negroes,” and “ mulattoes ”; others, hav- 
ing enacted race distinctions, have then defined whom 
they intended to include in each race. This has been 
done particularly in the laws prohibiting intermarriage. 
The Constitution of Oklahoma‘ provides that “ wherever 
in this Constitution and laws of this State, the word or 
words, ‘ colored’ or ‘ colored race,’ or * Negro,’ or ‘ Negro 
race, are used, the same shall be construed to mean, or 
14 , 


LEGAL DEFINITION OF NEGRO 


apply to all persons of African descent. The term ‘ white’ 
shall include all other persons.” 

Taking up these definitions in the various States— 
many of them included within broader statutes—one finds 
that Alabama,® Kentucky,® Maryland,’ Mississippi,* North 
Carolina,® Tennessee,’® and Texas ** define as a person of 
color one who is descended from a Negro to the third 
generation inclusive, though one ancestor in each gen- 
eration may have been white. The Code Committee of 
Alabama of 1903 substituted “ fifth” for “third,” so that 
at present in that State one is a person of color who has 
had any Negro blood in his ancestry in five generations.’? 
The laws of Florida,’* Georgia,** Indiana,’® Missouri,*'® 
and South Carolina ** declare that one is a person of color 
who has as much as one-eighth Negro blood: the laws of 
Nebraska ** and Oregon *® say that one must have as much 
as one-fourth Negro blood in order to be classed with that 
race. Virginia ?° and Michigan apparently draw the line 
in a similar way. In Virginia, a marriage between a white 
man and a woman who is of less than one-fourth Negro 
blood, “if it be but one drop less,” is legal. A woman 
whose father was white, and whose mother’s father was 
white, and whose great-grandmother was of a brown com- 
plexion, is not a Negro in the sense of the statute.2?_ In. 
1866, the court of Michigan, under a law limiting the suf- 
frage to “white male citizens,’ held that all persons 
should be considered white who had less than one-fourth 
of African blood.??, That State gave the right to vote also 
to male inhabitants of Indian descent, but its court held 
that a person having one-eighth Indian blood, one-fourth 
or three-eighths African, and the rest white was not in- 

15 


WHAT IS A NEGRO? 


cluded in that class.** Ohio limited the suffrage to white 

male citizens and made it the duty of judges of election 
to challenge any one with a “distinct and visible admix- 
ture of African blood,” but the latter requirement was 
held unconstitutional in 1867,°* the court saying that, 
where the white blood in a person predominated, he was 
to be considered white. ‘This definition is interesting be- 
cause it is the only instance found of a court’s saying 
that a person with more than half white blood and the 
rest Negro should be considered white. In contrast with 
this is the following sweeping definition laid down in the 
Tennessee statute: “All Negroes, Mulattoes, Mestizoes,2® 
and their descendants, having any African blood in their 
veins, shall be known in this State as ‘ Persons of Col- 


9.93.9 
OL 


Arkansas also, in its statute separating the races 
in trains, includes among persons of color all who have 

“a visible and distinct admixture of African blood.” ?7 
In everyday language, a mulatto is any person having 
both Caucasian and Negro blood. But several States have 
defined “ mulatto” specifically. The Supreme Court of 
Alabama ?* held, in 1850, that a mulatto is the offspring of 
a Negro and a white person, that the offspring of a white 
person and a mulatto is not a mulatto; but this definition 
was enlarged in 1867 7° to include anyone descended from 
Negro ancestors to the third generation inclusive, though 
one ancestor in each generation be white. It has been 
seen already that this was recently extended to the fifth 
generation. The law of Missouri *® defines a mulatto 
thus: “ Every person other than a Negro, any one of 
whose grandfathers or grandmothers is or shall have been 
a Negro, although his or her other progenitors, except 
16 . nee 


LEGAL DEFINITION OF NEGRO 


those descending from the Negro, may have been white 
persons, shall be deemed a mulatto, and every such per- 
son who shall have one-fourth or more Negro blood shall 
in like manner be deemed a mulatto.” 

Some States have allowed facts other than physical 
characteristics to be presumptive of race. Thus, it has 
been held in North Carolina *! that, if one was a slave in 
1865, it is to be presumed that he was a Negro. The fact 
that one usually associates with Negroes has been held 
in the same State proper evidence to go to the jury tend- 
ing to show that he is a Negro.*? If a woman’s first 
husband was a white man, that fact, in Texas,°* is ad- 
missible evidence tending to show that she is a white 
woman. 

One may ascertain how some of the States define the 
other races from their laws against miscegenation. Thus, 
Mississippi, in prohibiting intermarriage between Cauca- 
sians and Mongolians, includes one having as much as 
one-eighth Mongolian blood. Oregon makes its similar law 
applicable to those having one-fourth or more Chinese or 
Kanakan ** blood, or more than one-half Indian blood. 
Thus, three-eighths of Indian blood would not be suffi- 
cient to bar a man from intermarriage with a Caucasian, 
but one-fourth Negro, Chinese, or Kanakan blood would. 

The above are the laws which define the races. The 
interpretation of them is a» different question. Some 
statutes say that one is a person of color—in effect, a Ne, 
gro—if he is descended from a Negro to the third gener- 
ation inclusive, though one ancestor in each generation 
may have been white; others define as a person of color 
a man who has as much as one-eighth Negro blood; and 

3 17 


WHAT IS A NEGRO? 


still others, one who has as much as one-fourth Negro 
blood. , | 

The following diagram will probably clarify these 
definitions : 


III Bea ONGle cep E F q H 
GF. GM. GF. G.M 
I I J K io 
: ONG ae 
M N 


Suppose it is desired to ascertain whether the son X 
is a white person or a Negro. ‘The first generation above 
him is that of his parents, M and N. If either of them is 
white and the other a Negro, X has one-half Negro blood 
and would be considered a Negro everywhere. The sec- 
ond generation is that of his grandparents, I, J, K, and L. 
If any one of them is a Negro and the other three white, 
X has one-fourth Negro blood, and would be considered a 
Negro in every State except possibly Ohio. The third 
generation is that of his great-grandparents, A, B, C, D, 
E, F, G, and H. If any one of these eight great-grand- 
parents is a Negro, X has one-eighth Negro blood and 
would be considered a Negro in every State which defines 

18 


LEGAL DEFINITION OF NEGRO 


a person of color as one who has one-eighth Negro blood : 
or is descended from a Negro to the third generation in- 
clusive. Suppose, for instance, the great-grandfather A 
was a Negro and all the rest of the great-grandparents 
were white. The grandfather I would be half Negro; the 
father M would be one-fourth Negro; and X would be 
one-eighth Negro. Thus, though of the fourteen progen- 
itors of X only three had Negro blood, X would neverthe- 
less be considered a Negro. 

In the above illustrations only one of the progenitors 
has been a Negro and his blood has been the only Negro 
blood introduced into the line. Suppose, however, that 
there is Negro blood in both branches of the family, as 
where a mulatto marries a mulatto or a mulatto marries 
a Negro. One with a mathematical turn of mind may 
take these three generations and work out the various 
other combinations which would give X one-half, one- 
fourth, one-eighth, or any other fraction of Negro blood. 

It is safe to say that in practice one is a Negro or is 
classed with that race if he has the least visible trace of 
Negro blood in his veins, or even if it is known that there 
was Negro blood in any one of his progenitors. Misce- 
genation has never been a bridge upon which one might 
cross from the Negro race to the Caucasian, though it has 
been a thoroughfare from the Caucasian to the Negro. 
Judges and legislators have gone the length of saying that 
one drop of Negro blood makes a man a Negro, but to be 
a Caucasian one must be all Caucasian. This shows very 
clearly that they have not considered Negro blood on a 
par with Caucasian; else, race affiliation would be deter- 
mined by predominance of blood.. By the latter test, if 

19 


WHAT IS A NEGRO? 


one had more Negro blood than white, he would be con- 
sidered a Negro; if more white than Negro, a Caucasian. 
Therefore, at the very threshold of this subject, even in 
_ the definitions of terms, one discovers a race distinction. 
Whether it is a discrimination depends upon what one 
considers the relative desirability of Caucasian and Negro 
ancestry. 


PROPER NAME FOR BLACK MEN IN AMERICA 


Having considered how the law defines that hetero- 
geneous group of people called Negroes, one is brought 
face to face with the question: What, in actual practice, 
is the proper name for the black man in America? Is it 
“Negro?” Is it “colored person?” Is it “ Afro-Ameri- 
ean?” If not one of these, what is it? Among the mem- 
bers of that group, the matter of nomenclature is of more 
than academic interest: Thus, Rev. J. W. E. Bowen, 
Professor of Historical Theology at Gamman Seminary, 
Atlanta, and editor of The Voice of the Negro, in 1906, 
published an article in that paper with the pertinent title, 
“Who are We?” 

The ways of speaking of members of the Negro race 
are various. In the laws, as has been shown, they are 
called “ Negroes,” “ Persons of Color,’ “ Colored Per- 
sons,” “ Africans,” and “ Persons of African Descent ”— 
more often “ Persons of Color.” By those who would 
speak dispassionately and scientifically they are called Ne- 
groes and Afro-Americans. Those who are anxious not 
to wound the feelings of that race speak of them as “ Col- 
ored People” or “ Darkies ”; while those who would speak 
contemptuously of them say “ Nigger” or “ Coon.” “ Nig- 

20 


PROPER NAME FOR BLACK MEN IN AMERICA 


33 


ger” is confined largely to the South; “Coon,” to the 
rest of the country., Again, one occasionally finds 
“Blacks” and “Black Men” in contradistinction to 
* Whites ” and “ White Men.” 

The question of the proper name for persons of Afri- 
can descent was brought into prominence in 1906. In 
that year a bill was laid before Congress relative to the 
schools of the City of Washington, which provided that 
the Board of Education should consist of nine persons, 
three of whom should be “ of the colored race.” Repre- 
sentative Thetus W. Sims, of Tennessee, objected to the 
phrase on the ground that it would include “ Indians, 
Chinese, Japanese, Malays, Sandwich Islanders, or any 
persons of the colored race,” and insisted that “* Negroes” 
or “persons of the Negro race” should be substituted in 
its place. He wrote to Dr. Booker T. Washington, as one 
of the leaders of the Negro race, asking his views as to 
the proper word. ‘The following is part of his reply: - 
“. .. It has been my custom to write and speak of the 
members of my race as Negroes, and when using the term 
‘ Negro’ as a race designation to employ the capital ‘ N.’ 
To the majority of the people among whom we live I 
believe this is customary and what is termed in the rhetor- 
ics ‘good usage.’... Rightly or wrongly, all classes 
have called us Negroes. We cannot escape that if we 
would. ‘To cast it off would be to separate us, to a certain 
extent, from our history, and deprive us of much of the 
inspiration we now have to struggle on and upward. It 
is to our credit, not to our shame, that we have risen so 
rapidly, more rapidly than most other peoples, from sav- 
age ancestors through slavery to civilization. For my 

21 


are IS A NEGRO? 


part, I believe the memory of these facts should be pre- 
served in our name and traditions as it is preserved in the 
color of our faces. I do not think my people should be 
ashamed of their history, nor of any name that people ~ 
choose in good faith to give them.” *° 

Representative Sims’s objection to the phrase “of the 
colored race” precipitated a discussion throughout the 
country. The New York Tribune ** made a canvass of a 
great many prominent Negroes and white persons to as- 
certain what they thought the Negro should be called. 
The result of its inquiry is this: An average of eleven 
Negroes out of twenty desired to be spoken of as Negroes. 
The other nine spurned the word as “ insulting,” “ con- 
vulgar.” Two argued for 


temptuous,” “ degrading,” “ 
3 > 


“ Afro-American,” two for ‘‘ Negro-American,” one for 
“)lack man,” and one was indifferent so long as he was 
not called “ Nigger.” Of the white men interviewed, ten 
out of thirteen, on an average, preferred the word “ Ne- 
gro.” The Negroes made a specially strong plea for cap- 
italizing the word “ Negro,” saying that it was not fair 
to accord that distinction to their dwarfish cousins, the 
Negritos in the Philippines, and to the many savage 
tribes in Africa and deny it to the black man in America. 
They were also strongly opposed to the word “ Negress ” 
as applied to the women of their race. This, they asserted, 
is Objectionable because of its historical significance. For 
in times of slavery, “ Negress ” was the term applied to 
to a woman slave at an auction, in. contradistinction to 
“buck,” which referred to a male slave. 

HK. A. Johnson, Professor of Law in Shaw University, 
North Carolina, said: “The term ‘ Afro-American’ is 

a2 


PROPER NAME FOR BLACK MEN IN AMERICA 


suggestive of an attempt to disclaim as far as possible 
our Negro descent, and casts a slur upon it. It fosters the 
idea of the inferiority of the race, which is an incorrect 
notion to instill into the Negro youth, whom we are try- 
ing to imbue with self-esteem and self-respect.” 

Rev. J. W. E. Bowen, to whom reference has already 
been made, said: “ Let the Negroes, instead of bemourning 
their lot and fretting because they are Negroes and trying 
to escape themselves, rise up and wipe away the stain 
from this word by glorious and resplendent achievements. 
Good names are not given; they are made.” 

Rev. H. H. Proctor, pastor of the First Congrega- 
tional Church, Atlanta, said: “ What is needed is not to 
change the name of the people, but the people of the name. 
Make the term so honorable that men will consider it an 
honor to be called a Negro.” 

Rey. Walter H. Brooks, pastor of the Nineteenth 
Street Baptist Church, Washington, wrote: “The black 
people of America have but to augment their efforts in 
lives of self-elevation and culture, and men will cease to 
reproach us by any name whatever.” 

Finally, Charles W. Anderson, Collector of Internal 
Revenue, New York, said: “I am, therefore, inclined to 
favor the use of ‘ Negro,’ partly because to drop it would 
expose me to the charge of being ashamed of my race (and 
I hate any man who is ashamed of the race from which 
he sprung), and partly because I know that no name or 
term can confer or withhold relative rank in this life. All 
races and men must win equality of rating and status for 
themselves.” 

One is safe in concluding that the word “ Negro” 

23 


WHAT IS A NEGRO? 


(with the capital “N ”) will eventually be applied to the 
black man in America. White people are distinctly in 
favor of it: what Negroes now object to it do so because 
of its corrupt form, “ Nigger.” As the Negro shows his 
ability to develop into a respectable and useful citizen, con- 
temptuous epithets will be dropped by all save the thought- 
less and vicious, and “ Negro” will be recognized as the 
race name. 


NOTES 


1“ Following the Colour Line,” p. 151. 

2 Tbed., p. 151. 

8“ Jpn From Slavery,” p. 2. 

4 Art. XITI, sec. 11. 
- 5 Code, 1867, p. 94; Code, 1876, p. 187, sec. 2; Code, 1886, 
i: p. 56, sec. 2; Code, 1896, I, p. 112, sec. 2. 

6 Laws of Ky., 1865-66, p. 37. 

7 Pub. Gen. Laws of Md., I, art. 27, sec. 305, p. 878. 

8 Laws of Miss., 1865, p. 82. 

§Pell’s Revisal of 1908, II, sec, 3369. 

10 Code, 1884, sec. 3291. 

11 Laws of Tex., special session, 1884, p. 40. 

12 Code, 1907, I, p. 218, sec. 2. 

13 Laws of Fla., 1865, p. 30; Code, 1892, pp. 111 and 681; 
Gen. Stat., 1906, p. 165, sec. 1. 

14 Laws of Ga., 1865-66, p. 239. 

15 Annotated Stat., 1908, III, sec. 8360. 

16 Annotated Stat., 1906, II, sec. 2174. 

17 Laws of S. C., 1864-65, p. 271. 

18 Compiled Stat., 1895, sec. 3644. 

19 Bellinger and Cotton’s Code and Stat., II, sec. 5217. 

20 Laws of Va., 1865-66, p. 84. 

24 


NOTES 


21 McPherson’s Case, 1877, 28 Grat. 939. 

22 People v. Dean, 1866, 14 Mich. 406. 

*8 Walker v. Brockway, 1869, I Mich. N. P. (Brown) 57. 

24 Monroe v. Collins, 1867, 17 O. S. 665. 

25 A mestizo is a person of mixed blood, specially a person 
of mixed Spanish and American Indian parentage.—Cen- 
tury Dictionary, V, p. 3728. 

26 Laws of Tenn., 1865-66, p. 63. 

27 Kirby’s Digest, 1904, sec. 6632, p. 1378. 

28 Thurman v. State, 1850, 18 Ala. 276. 

29 Code, 1867, p. 94. 

30 Laws of Mo., 1864, p. 67. 

31 McMillan v. School Com., 1890, 12 S. E. 330; 107 N. 
C. 609. 

32 Hopkins v. Bowers, 1892, 16 S. E. 1; 111 N. C. 175. 

83 Bell v. State, 1894, 33 Tex. Cr. R. 163. 

84 A Kanakan is a Hawaiian or Sandwich Islander.—Cen- 
tury Dictionary, IV, p. 3264. 

35 The Norfolk, Va., Landmark, June 13, 1906. 

36The New York Daily Tribune, June 10, 1906, part 
IV, p. 2. 


CHAPTER III 
DEFAMATION TO CALL A WHITE PERSON A NEGRO 


THERE are certain words which are so universally con- 
sidered injurious to a person in his social or business rela- 
tions if spoken of him that the courts have held that the 
speaker of such words is liable to an action for slander, 
and damages are recoverable even though the one of whom 
the words were spoken does not prove that he suffered any 
special damage from the words having been spoken of 
him. The speaking of such words is said to be actionable 
per se. In short, all the world knows that it is injurious 
to a man to speak such words of him, and the court does 
not require proof of facts which all the world knows. 
Such words are (1) those imputing an infamous crime; 
(2) those disparaging to a person in his trade, business, 
office, or profession; and (3) those imputing a loathsome 
disease. ‘Thus, to say that a man is a murderer is to 
impute to him an infamous crime, and if he brings a suit 
for slander, it is not necessary for him to prove that he 
has been damaged by the statement. The result is the 
same if one says that a person will not pay his debts, be- 
cause that injures him in his profession or business; or 
that a man has the leprosy, because’ that is imputing to 
him a loathsome disease. | 

From early times, it has been held to be slander, action- 

26 


DEFAMATION TO CALL A WHITE PERSON. A NEGRO 


able per se, to say of a white man that he is a Negro or 
akin to a Negro. The courts have placed this under the 
second class—that is, words disparaging to a person in his 
trade, business, or profession. The first case in point 
arose in South Carolina? in 1791, when the courts held 
that, if the words were true, the party (the white person) 
would be deprived of all civil rights, and moreover, would 
be liable to be tried in all cases, under the “ Negro Act,” 
without the privilege of a trial by jury, and that “any 
words, therefore, which tended to subject a citizen to such 
disabilities, were actionable.” In 1818, it was held action- 
able by a court of the same State to call a white man’s 
wife a mulatto.2 But an Ohio * court, the same year, held 
that it was not slander, actionable per se, to charge a white 
man with being akin to a Negro inasmuch as it did not 
charge any crime or exclude one from society. The only 
explanation, apparently, of this conflict between the decis- 
ions of South Carolina and Ohio is that in the latter State 
it was not considered as much an insult to impute Negro 
blood to a white man asin the former. In North Carolina,‘ 
in 1860, there was the surprising decision that it was not 
actionable per se to call a white man a free Negro, even 
though the white man was a minister of the gospel. 

The Supreme Court of Louisiana,® in 1888, said: “ Un- 
der the social habits, customs, and prejudices prevailing 
in Louisiana, it cannot be disputed that charging a white 
man with being a Negro is calculated to inflict injury 
and damage. ... No one could make such a charge, 
knowing it to be false, without understanding that its 
effect would be injurious and without intending to injure.” 

In 1900, a Reverend Mr. Upton delivered a temperance 

a as 


DEFAMATION TO CALL A WHITE PERSON A NEGRO 


address near New Orleans. The reporters, desiring to be 
complimentary, referred to him as a “cultured gentle- 
man.” In the transmission of the dispatch by wire to 
the New Orleans paper, the phrase was, by mistake, 
changed to “colored gentleman.” ‘The Times-Democrat 
of that city, unwilling to refer to a member of the Negro 
race as a “colored gentleman,” changed it to “ Negro,” 
and that was the word finally printed in the report. As 
soon as he learned of the mistake, the editor of the paper 
duly retracted and apologized. But Mr. Upton, not ap- 
peased, brought a suit for libel and recovered fifty dollars 


39 


damages.® 

The News and Courier, of Charleston, South Caro- 
lina, in 1905, in reporting a suit by A. M. Flood against 
a street car company, referred to Mr. Flood as “ colored.” 
The latter brought suit against the newspaper and re- 
covered damages. In the course of its opinion, the court 
said: “When we think of the radical distinction subsist- 
ing between the white man and the black man, it must be 
apparent that to impute the condition of the Negro to a 
white man would affect his [the white man’s] social status, 
and, in case anyone publish a white man to be a Negro, 
it would not only be galling to his pride, but would tend 
to interfere seriously with the social relation of the white 
man with his fellow white men; and, to protect the white 
man from such a publication, it is necessary to bring such 
charge to an issue quickly.”? The court adds that its de- 
cision does not violate the Amendments to the Federal 
Constitution, for these do not refer to the social condition 
of the two races, but serve rather to give the two races 
equal civil and political rights. Finally, the court says, 

28 


DEFAMATION TO: CALL A WHITE PERSON A NEGRO 


quoting People v. Gallagher : “ . . . if one race be inferior 
to the other socially, the Constitution of the United States 
cannot put them on the same plane.” 

Where laws separating the races in railroad trains and. 
street cars are in force, and the duty devolves upon the 
conductors to assign passengers of the two races to their 
respective coaches or compartments, it is surprising that 
they do not more often make the mistakes of assigning 
bright mulattoes to the white coach and dark-skinned 
white persons to the colored. There are several instances 
where the latter mistake has been made. One would not 
expect a mulatto to resent being assigned to the white 
coach and nothing would come of it, unless some white 
passenger recognized him as being a Negro and objected ; 
but one would expect a white person to resent being as- 
signed to the “ Jim Crow” compartment. 

In Atlanta, in 1904, a certain Mr. Wolfe and his sis- 
ter boarded a street car and took seats in the part of the 
car reserved for white passengers. The conductor asked 
them to move back, and when they asked the reason, he 
answered that the rear of the car was for colored pas- 
sengers. The lady asked if he thought they were colored, 
to which he replied: ‘‘ Haven’t I seen you in colored com- 
pany?” Mr. Wolfe demanded an apology, and later 
brought suit against the company. The court held that 
the street car company was liable, and that the good faith 
of the conductor in honestly thinking that they were Ne- 
groes would serve only in mitigation of damages. 'I'wo 
judges were of opinion that the company would not be 
liable if the conductor used “extreme care and caution” 
to ascertain the race of the passengers. The court held 

29 


DEFAMATION TO CALL A WHITE PERSON A NEGRO 


that it would take judicial notice of the social status of 
the two races and of their respective superiority and in- 
feriority, saying: “ The question has never heretofore been 
directly raised in this State as to whether it is an insult 
to seriously call a white man a Negro or to intimate that 
a person apparently white is of African descent. We have 
no hesitation, however, after the most mature considera- 
tion of every phase of the question, in declaring our de- 
liberate judgment to be that the wilful assertion or in- 
timation embodied in the declaration now before us con- 
stitutes an actionable wrong. We cannot shut our eyes 
to the facts of which courts are bound to take judicial 
notice. Certainly every court is presumed to know the 
habits of the people among which it is held, and their 
characteristics, as well as to know leading historical events 
and the law of the land. To recognize inequality as to the 
civil or political rights belonging to any citizen or class 
of citizens, or to attempt to fix the social status of any 
citizen either by legislation or judicial decision, is repug- 
nant to every principle underlying our republican form of 
government. Nothing is further from our purpose. Un- 
der our institutions ‘ every man is the architect of his own 
fortune.’ Every citizen, white and black, may gain, in 
every field of endeavor, the recognition his associates may 
award. That is his right, and his own concern. But the 
courts can take notice of the architecture without inter- 
meddling with the building of the structure. It is a mat- 
ter of common knowledge that, viewed from a social stand- 
point, the Negro race is in mind and morals inferior to 
the Caucasian. The record: of each from the dawn of. 
historic times denies equality. The fact was recognized — 

30 


DEFAMATION TO CALL A WHITE PERSON A NEGRO 


by two of the leaders on opposite sides of the question of 
slavery, Abraham Lincoln and A. H. Stephens.” ® 

The following is a recent case arising in Kentucky, in 
which it was held that it is not slander per se to call a 
white person a Negro: A white woman entered a coach 
set apart for white people. The passengers therein com- 
plained that she was a Negro, and the brakeman, on hear- 
ing their remarks, asked her to go into the next coach. 
When, upon reaching the other coach, she found that it 
was set apart for Negroes, she left the train, which had 
not yet started from the station. She met the conductor, 
who, upon hearing her explanation, permitted her to go 
her journey in the white coach. Later, she brought suit 
against the railroad company and recovered a judgment 
for four thousand dollars. Upon appeal, the judgment 
of the lower court was reversed, the higher court saying: 
“What race a person belongs to cannot always be deter- 
mined infallibly from appearances, and mistake must in- 
evitably be made. When a mistake is made, the carrier 
is not lable in damages simply because a white person 
was taken for a Negro, or vice versa. It is not a legal 
injury for a white person to be taken for a Negro. It 
was not contemplated by the statute that the carrier should 
be an insurer as to the race of its passengers. The car- 
rier is bound to exercise ordinary care in the matter, but 
if it exercises ordinary care, and is not insulting to the 
passenger, it is not liable for damages.” 1° 

Probably the most recent case on the subject is one 
which arose about two years ago in Virginia. A certain 
Mrs. Stone boarded a train at Myrtle, Virginia. In spite 
of her protests, the conductor compelled her to go into 

31 


DEFAMATION TO CALL A WHITE PERSON A NEGRO 


the “Jim Crow” coach, thinking that she was a Negro. 
After she had entered the car, a Negro passenger recog- 
nized her and said, “ Lor’, Miss Rosa, this ain’t no place 
for you; you b’long in the cars back yonder.” Mrs. Stone 
rode on to Suffolk, the next station, and left the train. 
She sued the railroad company for one thousand dollars 
damages. It appeared that Mrs. Stone was much tanned: 
this probably caused the conductor to mistake her for a 
Negro. 

It will have been noticed that all the courts which 
have held it actionable per se to call a white person a Ne- 
gro have been in the Southern States. It is doubtful 
whether the courts in other sections would take the same 
view, and even Kentucky, a Southern State, has refused 
so to do. The attitude of the court depends upon whether 
it is the consensus of opinion among the people of the 
community that it is injurious to a white man in his busi- 
ness and social relations to be called a Negro. 

The above is clearly another race distinction. Al- 
though there are many decisions to the effect that it is 
actionable per se to call a white person a Negro, not one 
ean be found deciding whether it would be so to call a 
Negro a white person. One event looks, in a measure, in 
this direction. The city of Asheville, North Carolina, in 
1906, contracted with a printer to have a new city direc- 
tory issued. The time-honored custom of the place was 
to distinguish white and Negro citizens by means of an 
asterisk placed before the names of all Negroes. After 
the directory had been distributed, it was found that as- 
terisks had been placed before the names of two highly 
respected white citizens, thus indicating that they were 

32 | 


NOTES 


of Negro lineage. From what has been seen, there is no 
doubt that this would found an action for libel. The 
newspaper report says: “ On the heels of this suit brought 
by Mr. Lancaster [one of the white persons], it is said 
that Henry Pearson is seriously considering bringing suit 
against the same people because an asterisk was not * 
placed before his name. Henry is a Negro. In fact 
he is one of the best-known Negroes in Asheville. He 
is at present proprietor of the Royal Victoria, a Negro 
hotel, and complains that he has been the object of many 
unpleasant jests since the publication of the directory, 
and likewise inquiries as to just ‘when he turned white.’ 
Pearson fears that if the report goes abroad that he is 
a white man it will damage his hotel, and that the Negroes 
who make his place headquarters and who pay into Hen- 
ry’s hands many shekels will cease to patronize his hotel, 
and that his losses will be grievous.”** This case is 
unique; whether it has been brought to court is as yet 
unknown. It is probable that to sustain his action it 
would be necessary for the Negro to prove special dam- 
age to his business; whereas Mr. Lancaster would not have 
to allege or prove any damage at all. But, save in such 
a case as the above, it would be hard to imagine a cir- 
cumstance in which a court would hold that it is injuri- 
ous to a Negro in his trade, business, office, profession, or 
in his social relations to be called a white man. 


NOTES 


1 Eden v. Legare, 1791, 1 Bays (S. C.) 171. 
2 Wood v. King, 1818, 1 Nott & McC. (S. C.) 184. 


4 33 


DEFAMATION TO CALL A WHITE PERSON A NEGRO 


8 Barrett v. Jarvis, 1823, 1 O. (1 Hammond) 84, note. 

4 McDowell v. Bowles, 1860, 8 Jones (N. C.) 184. 

5 Spotarno v. Fourichon, 1888, 40 La. Ann. 423. 

6 Upton v. Times-Democrat Pub. Co., 1900, 28 So. 970. 

7Flood v. News and Courier Co., 1905, 50 S. E. 68. 

893 N. Y. 438 (1883). 

® Wolfe v. Ry. Co., 1907, 58 S. E. 899. 

10 So. Ry. Co. v. Thurman, 1906, 90 S. W. 240; 28 Ky. L. 
Rep. 699; 2 L. R. A. (N. S.) 1108. 

11 Ttalics the writer’s. 

12 Raleigh, N. C., News and Observer, July 25, 1906. 


CHAPTER IV 
THE “BLACK LAWS” OF 1865-68 


Onn set of race distinctions deserves to be treated by 
itself. They have long since become obsolete and were, 
during their existence, in a sense, anomalous; yet they are, 
perhaps, the most illuminating from a historical point 
of view of all the race distinctions in the law. They 
were the result of the statutes that were enacted by the 
legislatures of the Southern States between 1865 and 1868 
for the definition and establishment of the status of the 
Negro. The War closed in 1865; the Fourteenth Amend- 
ment to the Federal Constitution was ratified July 28, 
1868; and the Reconstruction régime in the South was not 
under way till 1868 or later. Therefore, during the in- 
terval between the close of the War and the ratification 
of the Fourteenth Amendment or the beginning of active 
Reconstruction, the Southern States were free to adopt 
such measures as they saw fit to establish the relation be- 
tween the races. 

The legislatures faced a new problem, or rather an old 
problem increased many fold in perplexity. They had to 
establish the industrial, legal, and political status of 4,- 
000,000 people who had recently been slaves and were now 
freemen. It must be remembered that when the Southern 
legislatures convened in 1865 their actions with regard to 

| 35 


THE “BLACK LAWS” OF 1865-68 


the Negro were not beset by the limitations subsequently 
fixed by the Federal Government. The first Civil Rights 
Bill, that of 1866, had not been passed. The Southern 
States were at liberty to enact such statutes as they 
thought proper and to draw upon their own experience and 
that of the free States with regard to free Negroes. 


“ BLACK LAWS” OF FREE STATES 


These statutes of 1865-68 are here called the “ Black 
Laws.” This term was first applied to the laws of the 
border and Northern States passed before and up to the 
Civil War to fix the position of free persons of color. It 
is well to make a cursory examination of these laws of the 
free States, because they are prototypes of many of the 
statutes enacted by the Southern States while unhampered 
by Federal legislation. All the States, North as well as 
South, had previously faced the problem of the free Negro 
and made laws concerning him. Naturally, therefore, the 
South, now that all its Negroes were declared free, turned 
for precedents to the other States which had already had 
experience with the free Negro. 

The following are some of the statutes that had been 
enacted with regard to free Negroes by States lying out- 
side of what was later the Confederacy: 

Maryland,' in 1846, denied Negroes, slave or free, the 
right to testify in cases in which any white person was 
concerned, though it permitted the testimony of slaves 
against free Negroes. The Constitution * of 1851 forbade 
the legislature to pass any law abolishing the relation of 
master and servant. : 

36 


“BLACK LAWS” OF FREE STATES 


Delaware,® in 1851, prohibited the immigration of free 
Negroes from any State except Maryland: moreover, it 
forbade them to attend camp meetings, except for religious 
worship under the control of white people, or political 
gatherings. A law of 1852 provided that no free Negroes 
should have the right to vote or “ to enjoy any other rights 
of a freeman other than to hold property, or to obtain 
redress in law and in equity for any injury to his or her 
person or property.” 

Missouri,* in 1847, forbade the immigration into the 
State of any free Negro; enacted that no person should 
keep a school for the instruction of Negroes in reading 
and writing; forbade any religious meetings of Negroes 
unless a justice of the peace, constable, or other officer 
was present; and declared that schools and religious meet- 
ings for free Negroes were “ unlawful assemblages.” 

Ohio, which probably had the most notorious “ Black 
Laws ” of any free State, “ required colored people to give 
bonds for good behavior as a condition of residence, ex- 
cluded them from the schools, denied them the rights of 
testifying in courts of justice when a white man was party 
on either side, and subjected them to other unjust and de- 
grading disabilities.” ° 

Indiana,® in 1851, prohibited free Negroes and mulat- 
toes from coming into the State, and fined all persons who 
employed or encouraged them to remain in the State be- 
tween ten and five hundred dollars for each offense.?' The 
fines were to be devoted to a fund for the colonization of 
Negroes. A law, which was submitted to a special vote 
and passed by a majority of ninety thousand, prohibited 
intermarriage between the races, provided for colonization 

3% 


THE “BLACK LAWS” OF 1865-68 


of Negroes, and made incompetent the testimony of per- 
sons having one-eighth or more Negro blood.° 

Illinois,?° in 1853, made it a misdemeanor for a Negro 
to come into the State with the intention of residing there, 
and provided that persons violating this law should be 
prosecuted and fined or sold for a time to pay the fine.** 

Towa,!? in 1851, forbade the immigration of free Ne- 
groes,** and provided that free colored persons should not 
give testimony in cases in which a white man was a party. 

Oregon,’* in 1849, forbade the entrance of Negroes as 
settlers or inhabitants, the reason being that it would be 
dangerous to have them associate with the Indians and 
incite the latter to hostility against white people. 

This sketch of the “ Black Laws” of some of the free 
States, incomplete as it is, is sufficient to show how those 
States regarded free Negroes. First, they tried to keep 
Negroes out; and, secondly, they subjected those that re- 
mained to various disabilities. When the first Civil Rights 
Bill was before Congress, the strongest opposition to its 
passage was on the ground that it would compel the free 
States to repeal these “ Black Laws” and allow Negroes 
to intermarry with whites, attend the same schools, sit 
on juries, vote, bear firearms,’® etc. The free Negro con- 
stituted a distinct class between the slave and the master, 
his condition being more nearly that of a slave. 

The Southern States had been afraid of the free Ne- 
gro. He was a sort of irresponsible being, neither bond 
nor free, who was likely to spread and foster discontent 
among the slaves. When a slave was emancipated, it was 
desired that he leave the State forthwith. Thus, the Vir- 
ginia Constitution ** of 1850 provided that emancipated 

38 


“BLACK LAWS” OF FREE STATES 


slaves who remained in the Commonwealth more than 
twelve months after they became actually free, should for- 
feit their freedom and be reduced to slavery under such 
regulations as the law might prescribe. The free Negro 
was truly between the devil and the deep sea. If he stayed 
in the State, he would be reénslaved; if he went to a free 
State, he would be liable to prosecution there for violat- 
ing the laws against the immigration of free persons of 
color. 

As one turns to the first laws passed by the Southern 
States after Emancipation, he should keep in mind that 
these States were only grappling with the old problem of 
the free Negro, now on a much larger scale, which prob- 
lem the free States had disposed of already in the manner 
just seen. As yet, the Southern States had no conception 
of the Negro as a citizen with inalienable rights to be 
recognized and protected. For instance, the Constitution 
of Mississippi’? of 1832, as amended August 1, 1865, 
abolished slavery and empowered the legislature to make 
laws for the protection and security of the persons and 
property of freedmen, and to guard “them and the State 
against any evils that may arise from their sudden eman- 
cipation.” And the laws of South Carolina,'® of the same 
year, provided that, “although such persons [Negroes] 
are not entitled to social or political equality with white 
persons,’ they might hold property, make contracts, ete. 
except as hereinafter modified. 


39 


THE “BLACK LAWS” OF 1865-68 


RESTRICTIONS UPON MOVEMENT OF NEGROES 


After 1865 there was comparatively little legislation 
as to the movement of Negroes from one State to another. 
It would have been utterly impossible to control the migra- 
tion of the 4,000,000 Negroes then in the United States. 
In States where the free Negroes were numbered by only 
hundreds or even thousands, the entrance or exit of one 
was a noticeable event. Where, however, Negroes were 
in the majority, a hundred might have come or gone at 
once without being noticed. The Constitution of Geor- 
gia *® of 1865 empowered the general assembly to make 
laws for the regulation or prohibition of the immigration 
of free persons of color into that State from other places; 
but the legislature seems not to have used this power. 

Two years earlier, in 1863, the legislature of Ken- 
tucky *° had declared that it was unlawful for any Negro 
or mulatto claiming to be free under the Hmancipation 
Proclamation of January 1, 1863, or under any other 
proclamation by the Government of the United States, 
to migrate to or remain in the State. Any Negro violat- 
ing this law was treated as a runaway slave. 

A law of South Carolina,?1 of 1865, provided that no 
person of color should migrate to or reside in the State 
unless, within twenty days after his arrival, he entered into 
a bond with two freeholders as sureties in a penalty of 
one thousand dollars, conditioned on his good behavior 
and for his support if he should become unable to support 
himself. If he should fail to execute the required bond, 
he had to leave the State within ten days, or be liable to 
corporal punishment. If, after being so punished, he 

40 


LIMITATIONS IN RESPECT TO OCCUPATIONS > 


should still remain in the State fifteen days longer, he was 
to be transported beyond the limits of the State for life 
“or kept at hard labor, with occasional solitary confine- 
ment, for a period not exceeding five years.” The same 
punishment of banishment for life, or confinement and 
hard labor for a term was prescribed for any person of 
color coming or being brought into South Carolina after 
having been convicted of an infamous crime in another 
State. | 

That the Southern States believed that the day of th 
Negro as a laborer was over was evidenced, not only by 
their efforts to keep Negroes out of the State, but also by 
the fact that so many of them, during the first years after 
the War, passed statutes encouraging and offering induce- 
ments to foreign immigrants. The movement to bring 
foreigners into the South is still going on, but it has never 
met with much success. 

Although to-day many places, both in the North and 
in the South, do not permit Negroes to reside within their 
borders or even to stay over night, the above are apparently 
the last instances where attempts to limit the movement 
of Negroes *? have been made by State legislatures. Most 
of the States have concluded to allow Negroes to come 
and go at will, but to fix their status while in the State. 


LIMITATIONS UPON NEGROES IN RESPECT TO OCCUPATIONS 


From some occupations Negroes were wholly excluded ; 
others, they were permitted to engage in, only after obtain- 
ing licenses. The Alabama Code #* of 1867 provided that 
no free Negro should be licensed to keep a tavern or to 

41 


THE “BLACK LAWS” OF 1865-68 


sell vinous or spirituous liquors. There had been a statute 
of the same State which declared that a free Negro should 
not be employed to sell or to assist in the sale of drugs 
or medicine, under a penalty of one hundred dollars, but 
this had been repealed in 1866.** ) 

In South Carolina,”®> it was unlawful for a Negro 
either to own a distillery of spirituous liquors or any es- 
tablishment where they were sold. The violation of this 
law was a misdemeanor punishable by fine, corporal pun- 
ishment or hard labor. The law of this State °° went still 
further by enacting that no person of color should pursue 
or practice the art, trade, or business of an artisan, me- 
chanic, or shopkeeper, “or any other trade, employment, 
or business (besides that of husbandry, or that of a*serv- 
ant under contract for service or labor) on his own ac- 
count and for his own benefit, or in partnership with a 
white person, or as agent or servant of any person ” until he 
should have obtained a license. This license was good for 
one year only. Before granting the license the judge had 
to be satisfied of the skill, fitness, and good moral char- 
acter of the applicant. If the latter wished to be a shop- 
keeper or peddler, the annual license fee was one hundred 
dollars; if a mechanic, artisan, or a member of any other 
trade, ten dollars. The judge might revoke the license 
upon a complaint made to him. Negroes could not prac- 
tice any mechanical art or trade without showing either 
that they had served their term of apprenticeship or were 
then practicing the art or trade. For violation of this rule, 
the Negro had to pay a fine of double the amount of the 
license, one-half to go to the informer. 


In some States, there was a limitation upon the right 


42 


SALE OF FIREARMS AND LIQUOR TO NEGROES 


of Negroes to hold land as tenants. A statute of Missis- 
sippi *7 in 1865 gave them the right to sue and be sued, to 
hold property, ete., but declared that the provisions of the 
statute should not be construed to allow any freeman, free 
Negro, or mulatto to rent or lease any lands, except in in- 
corporated towns or cities in which places the corporate 
authorities should control the same. The same statute 
required every freeman, free Negro, or mulatto to have on 
January 1, 1866, and annually thereafter, a lawful home 
and employment with written evidence thereof. If living 
in an incorporated town, he must have a license from the 
mayor, authorizing him to do irregular job work—that is, 
if he was not under some written contract for service; if 
living outside such a town, he must have a similar license 
from a member of the board of police of his precinct. 

Tennessee,”* on the other hand, went to the length of ex- 
pressly throwing open all trades to Negroes who complied 
with the license laws which were applicable to whites and 
blacks alike. | 


SALE OF FIREARMS AND LIQUOR TO NEGROES 


A fruitful subject of legislation was that relative to the 
sale of firearms to Negroes. On January 15, 1866, the 
legislature of Florida ®® enacted a law declaring that 
it was unlawful for a Negro to own, use, or keep in his 
possession or control “any bowie-knife, dirk, sword, fire- 
arms or ammunition of any kind” unless he had obtained 
a license from the probate judge of the county. To 
get the license, he had to present the certificate of two 
respectable citizens of the county as to the peaceful and 

43 


THE “ BLACK LAWS” OF 1865-68 


orderly character of the applicant. The violation of this 
statute was a misdemeanor punishable by the forfeiture to 
the use of the informer of such firearms and ammunition | 
and by standing in a pillory one hour or by being whipped 
not over thirty-nine stripes. 

In Mississippi *° the law was that any freedman, free 
Negro, or mulatto, not in the military service of the United 
States nor having a specified license, who should keep or 
carry firearms of any kind or any ammunition, dirk, or 
bowie-knife should de punished by a fine of not over ten 
dollars, and all such arms, etc., should be forfeited to the 
informer. The law further provided that, if any, white 
person lent or gave a,freedman, free Negro, or mulatto any 
firearms, ammunition, dirk, or bowie-knife, such white 
person should be fined not over fifty dollars, or imprisoned 
not over thirty days. South Carolina ** did allow a Negro 
who was the owner of a farm, to keep a “ shot-gun or rifle, 
such as is ordinarily used in hunting, but not a pistol, mus- 
ket, or other firearm or weapon appropriate for purposes 
of war.” 

It has been seen that some States forbade Negroes to 
make or sell intoxicating liquor. Others went a step fur- 
ther and made it unlawful to sell liquor to Negroes. It 
is worth noting that one of the early acts of the legislature 
of Alabama *? was to repeal such a law. But Kentucky *8 
forbade a coffee-house keeper to sell liquor to free Negroes 
under penalty of a bond of five hundred dollars. Missis- 
sippi ** made it an offence, punishable by a fine of not over 
fifty dollars or imprisonment for not more than thirty days, 
for a white man to sell, give, or lend a Negro any intoxi- 
cating liquors, except that a master, mistress, or employer — 

dt 


SALE OF FIREARMS AND LIQUOR TO NEGROES 


might give him spirituous liquors, but not in quantities 
sufficient to produce intoxication. 

These laws against the sale of firearms and liquor to 
Negroes probably grew out of a fear by the white people 
of a Negro uprising, such as had occurrred during slavery. 
The South was in such a turmoil immediately after the 
War that stringent precautionary measures were consid- 
ered necessary. ‘These statutes have analogies in the pres- 
ent laws of the Western States against the sale of firearms 
and liquor to Indians. The law of Arizona ** declares that 
anyone who sells or gives intoxicating liquor to an Indian 
is guilty of a misdemeanor, and shall be punished by a fine 
of between one hundred and three hundred dollars or im- 
prisoned between one and six months, or both. The sale 
or gift or repair of firearms was added in 1883.°* Idaho 3” 
has a law very much the same, making the fine, however, 
not over five hundred dollars or the term of imprisonment 
not over six months, or both. Dakota Territory,** in 1865, 
made it a misdemeanor to sell or give liquor to Indians. 
Nebraska,*® in 1881, made it an offence punishable by a fine 
of fifty dollars to sell liquor to them, and in 1891 made it 
a felony to sell or give liquor to any Indian not a citizen, 
attaching a fine of not over one thousand dollars or impris- 
onment in the penitentiary between two and five years. 
New Mexico *° makes the punishment a fine between twenty 
and one hundred dollars or imprisonment not over three 
months. Utah #4 makes the punishment a fine between ten 
and one hundred dollars. The law of Oregon *? made it 
lawful for every white male citizen of the age of sixteen 
to keep and carry certain arms, impliedly denying that 
right to other races. Washington ** made the punishment 

45 


THE “BLACK LAWS” OF 1865-68 


for selling or giving liquor to Indians a fine of between 
twenty-five and one hundred dollars. As late as 1903 one 
finds in the revised statutes of Maine ** a provision that 
one who sells or gives to an Indian intoxicating liquors 
forfeits not less than five nor more than twenty dollars, 
one-half to complainant. It must be clear that the fore- 
going laws were not passed solely for the moral uplift of 
the Indian, but quite as much as a protection to white 
people from drunken Indians. A similar motive must have 
actuated the Southern States in enacting the laws of 1865- 
1868, and it has been, at least, one incentive for the 


present prohibition legislation in the South. r 


LABOR CONTRACTS OF NEGROES 
s 


Another common form of legislation with regard to free 
Negroes was that relative to their contracts for personal 
service. A Florida *® statute of 1865 required that all con- 
tracts with persons of color should be in writing and fully 
explained to them before two credible witnesses, and that 
one copy of the contract should be kept by the employer 
and the other by some judicial officer of the State and 
county wherein the service was to be performed. Contracts 
for less than thirty days might be oral. The Negro who 
failed to perform his contract by wilful disobedience of or- 
ders, wanton impudence, or disrespect, failure or refusal to 
do the work assigned to him, idleness, or abandonment of 
the premises, was treated as a vagrant. In 1866 *° the law | 
ceased to be a race distinction when, by a new enactment, 
it was greatly limited and made applicable to whites and 
blacks alike. — 

| 46 


LABOR CONTRACTS OF NEGROES 


The law of Kentucky ** required contracts between 
white persons and Negroes to be in writing and attested by 
some white person. ‘The contracts were to be treated as 
entire, so that, if either party should, without good cause, 
abandon the contract, the other should be held to have per- 
formed his obligation. 

Mississippi ** enacted that all contracts for labor with 
freedmen, free Negroes, or mulattoes for a longer period 
than one month should be in writing, attested by two dis- 
interested white persons in the county where the labor was 
to be performed, and read to the Negro by some officer. If 
the laborer quit without good cause before the expiration 
of the term, he forfeited his wages for the year up to the 
time of quitting. That State made it the duty of every 
civil officer and the option of every other person to arrest 
and carry back to his employer every Negro laborer who 
had left, and the person making the arrest was entitled to 
receive five dollars as a fee and ten cents per mile from the 
place of arrest to the place of delivery, the same to be paid 
by the employer and taken out of the wages of the Negro. 
The Negro might appeal to a justice of the peace who 
might summarily try the merits of the case. Then, either 
the master or the servant might appeal to the county 
court which had power to remand the deserter to the em- 
ployer or to dispose of him otherwise as it thought right 
and just, and its decision was final. 

In Virginia *® all contracts for service between a white 
person and a Negro for more than two months had to be 
in writing, signed by both parties, acknowledged before a 
justice of the peace, notary public, clerk of the county or 
corporation court, overseer of the poor, or two or more 

AY 


THE “BLACK LAWS” OF 1865-68 


credible witnesses in the county or corporation where the 
work was to be done. And the justice, notary, etc., had to 
read and explain the contract to the Negro. 

Of all the Southern States, South Carolina *®® went 
much the furthest into detail as to contracts for service. 
Persons of color who made contracts for service or labor 
were to be known as servants, and those with whom they 
contracted, as masters. Contracts for one month or more | 
must be in writing, attested by one white witness, and 
approved by the judge of the district court or a magistrate. 
If the period of service was not mentioned, it was until 
the twenty-fifth of December next after making the con- 
tract. If the wages were not stipulated, they were to be 
fixed by the district judge or magistrate on application by 
one of the parties and notice to the other. A Negro, ten 
years or more of age, having no parent living in the dis- 
trict and not an apprentice, might make a valid contract 
for a year or less. Contracts must be presented for ap- 
proval within twenty days. Contracts for one month or 
more were not binding on the servant unless written and 
approved. Failure to make such a written contract was a 
misdemeanor punishable by a fine of from five dollars to 
fifty dollars. If the servant received only board and cloth- 
ing, a written contract was unnecessary. ‘The fee for ap- 
proval ranged between twenty-five cents for a contract of 
one month or less to one dollar for a contract for one year 
and one dollar for each year or part of a year in addition, 
half the fee to be paid by each party. 

Labor on farms was minutely regulated. Hours of 
labor, except on Sundays, were from sunrise to sunset, 
with a reasonable interval for breakfast and dinner. 

48 


LABOR CONTRACTS OF NEGROES 


Servants must “rise at the dawn in the morning, feed, 
water, and care for the animals on the farm, do the usual 
and needful work about the premises, prepare their meals 
for the day, if required by the master, and begin the farm 
work or other work by sunrise.” They must be careful of 
all the animals and property of their masters, and especially 
of the animals and implements used by them; must prevent 
them from injury by others. ‘They were answerable for 
all property lost, destroyed, or injured by their negligence, 
dishonesty, or bad faith. | 

All lost time, not occasioned by the master, and all 
losses caused by neglect of duty might be deducted from 
the wages of the servant. Food, nursing, and other neces- 
saries for the servant, while absent from work on account 
of sickness or other cause, might also be deducted. Serv- 
ants must be quiet and orderly in their quarters, at their 
work, and on the premises. They must extinguish their 
hghts and fires, and retire to rest at seasonable hours. 
Work at night and out-door work in bad weather was not 
to be exacted except in cases of necessity. | 

Servants were not to be kept at home on Sundays un- 
less to take care of the premises or animals, for work of 
daily necessity, or on unusual occasions; and then only so 
many as were necessary to do the work. Sunday work 
must be done by them in turn, except in cases of sick- 
ness or disability, when the work might be assigned 
out of order. Those away on Sunday must be back by 
sunset. ! 

Masters might give servants tasks, and might require 
them to rate themselves as full hands, three-quarters, half, 
or one-quarter in order to determine the task. If the serv- 

5 49 


THE “BLACK LAWS” OF 1865-68 


ant complained of the task, the district judge or magistrate 
might reduce or increase it. 

Visitors of servants could not be invited or allowed by 
the servants to come on the premises of the master without 
his express consent, nor could servants be absent from the 
premises without such permission. 

If the servant left his employment without good cause, 
he forfeited all the wages due him. He must obey all law- 
ful orders of the master or his agent, and “ bé honest, 
truthful, sober, civil, and diligent in his business.” The 
master might moderately correct servants under eighteen 
years of age. He was not liable to pay for any additional 
services of a servant, if they were necessary, except by ex- 
press agreement. 

The master might discharge the servant for: (1) wil- 
ful disobedience of the lawful order of himself or his agent; 
_ (2) habitual negligence or indolence in business; (3) 
drunkenness, grossly immoral or illegal conduct; (4) want 
of respect and courtesy to himself, his family, guests, or 
agents; (5) or for prolonged absence from the premises, or 
absence on two or more occasions without permission. Or, 
if the master preferred, he might report the servant to the 
district judge or magistrate, who had power to inflict suit- 
able corporal punishment or impose a fine, and remand 
him to work; the fine to be deducted from the wages, if 
not paid. These were the means by which the judge or 
magistrate might compel the servant to perform his con- 
tract. 

The master was not liable to third persons for the vol- 
untary trespasses, torts, and misdemeanors of his servants. 
Nor was he liable for any contract of his servant unless — 

50 


LABOR CONTRACTS OF NEGROES 


made with the master’s authority, nor for any acts of the 
servant unless done within the scope of his authority or in 
the course of his employment It was the master’s duty 
to protect his servant from violence at the hands of others 
and to aid him in getting redress for injuries. 

For a person to deprive the master of the services of 
his servant, knowing him to be such, by enticing him away, 
harboring him, detaining him, beating, confining, disabling, 
or in any way injuring him was punishable by a fine of 
from twenty dollars to two hundred dollars, and imprison- 
ment or hard labor for not over sixty days. In addition, 
the master might recover damages for loss of such services. 

The master had the right to command the servant to 
aid him in the defence of his own person, family, premises, 
or property. He did not have to furnish medicine or med- 
ical assistance to the servant unless he especially agreed to 
do so. 

The master might inform a prospective employer of 
the character of a Negro who had been in his service, and 
this was a privileged communication unless falsely and 
maliciously made. ‘The servant could not make a new 
contract without producing the discharge of his former 
master or of the district judge or magistrate. 

If the master was convicted of a felony or if he man- 
aged or controlled his servants so as to make them a nui- 
sance to the neighborhood, any white freeholder might com> 
plain to the district judge and have the contract annulled, 
and the master could not employ any colored servant 
within two years. 

A servant had the right to leave his master’s service for: 
(1) an insufficient supply of food; (2) an unauthorized 

51 


\) yo} 


WK 


xy OF 
HERTS 


THE “BLACK LAWS” OF 1865-68 


battery upon his person or upon a member of his family, 
not committed in the defence of the person, family, guest, 
or agent of the master; (3) invasion by the master of the 
conjugal rights of the servant; (4) or failure by the mas- 
ter to pay wages when due. In any one of the above cases, 
the servant might collect his wages due him at the time of 
his departure. 

If the master died, the contract—contrary to thie usual 
tule of law—was not terminated without the assent of the 
servant. His wages up to one year took preference over 
other debts of the master. If the servant was wrongfully 
discharged, he could collect wages for the whole period 
of the contract. Upon the servant’s discharge or the expi- 
ration of his term of service, the master must furnish him 
a certificate of discharge, and upon his request, a certifi- 
cate of character. If the servant forged or altered this cer- 
tificate—as by falsely claiming that he had been in a cer- 
tain previous service—he was guilty of a misdemeanor, 
punishable by a fine of not over one hundred dollars. All 
disputes as to alleged wrongful discharges or departures 
were to be heard by the district judge, who could compel 
the master to take back the servant or forfeit a penalty of 
a fine of twenty dollars; or compel the servant to return 
to his master under pain of corporal punishment or fine. 

A servant was not liable for contracts made by the ex- 
press authority of his master. Nor was he liable civilly or 
criminally for any act done by the command of his master 
in defence of his master’s person, family, guest, servant, 
premises, or property. 

Negroes employed as house servants had, at “all hours 
of the day and night, and on all days of the week,” to 

52 


APPRENTICE LAWS 


answer promptly all calls and execute all lawful orders and 
commands of the master’s family. They had to be espe- 
cially civil and polite to their master, his family, and 
guests, for which they in turn should “ receive gentle and 
kind treatment.” 

The statute provided for a regular form of contract be- 
tween master and servant, which was understood to include 
all of the above stipulations unless otherwise provided. 


APPRENTICE LAWS 


The early legislatures also made detailed apprentice 
laws. Although it is scarcely open to argument that, in 
making such laws, they did not have in mind primarily 
Negroes, still many of the statutes made no mention of 
race, and, therefore, cannot be properly discussed here. 
Thus, Alabama *? had a long statute on apprentices, but the 
only reference to the Negro was the rule that, if the minor 
be a child of a freedman, the former owner of the child 
should have the preference of apprenticing him, if a suit- 
able person. 

In Kentucky,*? if the apprentice was white, the mas- 
ter must teach him reading, writing, and common arith- 
metic up to and including the “Rule of Three”; if a 
Negro, the master must pay at the end of the apprentice- 
ship fifty dollars to a girl and one hundred dollars to a 
boy, but if the master should teach the apprentice to read 
and write, he was not bound to pay any money. In Ken- 
tucky, also, in apprenticing Negroes, preference was given 
to their former owners, if the latter were suitable persons. 

Mississippi °* had an elaborate apprentice law which 

53 


THE “BLACK LAWS” OF 1865-68 


related only to freedmen, free Negroes, and mulattoes. The 
sheriffs, justices of the peace, and other civil officers of the 
county had to report to the probate court semiannually, in 
January and July, the names of all freedmen, free Negroes, 
and mulattoes, under the age of eighteen, who where or- 
phans or whose parents were unable or unwilling to sup- 
port them. It was the duty of the court, thereupon, to 
order the apprenticing of such minors, preference being 
given to their former masters if suitable persons. The 
master had to furnish a bond payable to the State condi- 
tioned upon his furnishing the minor with sufficient food 
and clothing, treating him humanely, giving him medical 
attention when sick, and, if the minor was under fifteen, 
teaching him or having him taught to read and write. 
Males were bound till they were twenty-one; females, till 
they were eighteen. The master could inflict moderate cor- 
poral chastisement as a father or guardian might do; but 
in no case could he inflict cruel or inhuman punishment. 

If the apprentice ran away, the master might pursue 
him and bring him before a justice of the peace who could 
remand him to the service of his master. If the apprentice 
refused to return, he might be put into jail until the next 
term of the court, when his case would be investigated. If 
it was found that he left without cause, he could be pun- 
ished like a hired freedman ; but if he had a good cause, the 
court might discharge him and enter judgment against his 
master for not over one hundred dollars to be paid to the 
apprentice. Anyone enticing an apprentice away from his 
master, knowingly employing him, furnishing him food or 
clothing, or giving or selling him lquor without the mas- 
ter’s consent was guilty of a high misdemeanor. 

54. 


APPRENTICE LAWS 


If the master wished to get rid of the apprentice, he 
might go before the probate court, which could cancel his 
bond, and re-apprentice the minor. If the master died, the 
court in re-apprenticing would give preference to the widow 
or other member of the family of the deceased. If the 
master wished to move to another State and take his ap- 
prentice with him, he had to execute a bond conditioned 
upon his compliance with the apprentice laws of the State 
to which he was going. Any parent of a free Negro or 
mulatto might apprentice his minor child, and if the age 
could not be fixed by record testimony, the court fixed it. 

The only race distinction made by North Carolina ** 
was the law that no white child should be bound to a col- 
ored master or mistress, and this came in 1874—long after 
the period here considered. 

The apprentice laws of South Carolina *® which applied 
only to Negroes were almost as elaborate as those of Mis- 
sissippi. A child over two years of age, born of a colored 
parent, might be bound as an apprentice to any respectable 
white or colored person; if a male, till he was twenty-one; 
if a female, till she was eighteen. Illegitimate children 
might be bound out by their mother. If the child had 
no parent in the district; or if his parents were paupers, 
or unable to support him, or were not teaching him the 
habits of industry and honesty, or were of a notoriously 
bad character or vagrants, or if either of them had been 
convicted of an infamous crime, he might be apprenticed 
by the district judge or by a magistrate. Males of twelve 
and females of ten had to sign the contract of apprentice- 
ship and were bound thereby; but their refusal to sign 
would not affect the validity of the instrument. If the 

9) 


THE “BLACK LAWS” OF 1865-68 


apprenticeship was voluntary, the contract had to be under 
seal, signed by the master, parent, and apprentice, attested 
by two credible witnesses, and approved by the district 
judge or magistrate. One copy of the contract was kept 
by the master, another, filed in the office ofthe clerk of 
court. The master had to pay three dollars for the approval 
of the contract by the district judge or magistrate. 

Other duties devolving upon the master were to teach 
the apprentice the business of husbandry or some other use- 
ful trade or business specified in the contract; to furnish 
him wholesome food and suitable clothing; to teach him 
habits of industry, honesty, and morality; to govern and 
treat him with humanity; and if there was a colored school 
within convenient distance, to send him to school as much 
as six weeks of each year after he was ten years of age. The 
teacher of such school must have the license of the district 
judge to establish it. 

The master could inflict moderate chastisement, im- 
pose reasonable restraint on the apprentice, and bring him 
back if he ran away. If the master neglected his duty or 
subjected the apprentice to the danger of moral contamina- 
tion, the district judge might dissolve the relation of mas- 
ter and apprentice. All cases of dispute between master 
and apprentice were to be tried before a magistrate, who 
had the power to punish the party found to be at fault. 
If the judge ordered the apprentice discharged for immod- 
erate correction or unlawful restraint, the master might be 
indicted and punished by a fine of not over fifty dollars 
or imprisonment of thirty days. In addition, the appren- 
tice had an action for damages. 

After the expiration of the term of service, the appren- 

56 


APPRENTICE LAWS 


tice was entitled to not over sixty dollars from his master. 
To the apprentice also applied the provisions for the serv- 
ant under contract, which have been considered, except that 
the master was bound to furnish him medical aid, as he 
did not have to do in the case of the servant. And for 
apprentices also, as in the case of servants, there was a reg- 
ular form of contract which was understood to contain all 
the above stipulations. 

In Delaware,®*® not a Southern State, but much like the 
Southern States in its dealings with the Negro, in its code 
of 1852 as amended in 1893, is this belated statute: “ Any 
two justices of the peace, on receiving information of any 
Negro or mulatto child in their county, having no parents 
in this State, or who, being under the age of fifteen years, 
have no parent able to maintain them, or who do not bring 
them up to industry and stable employment, shall issue 
process to a constable commanding him to bring such child 
before them at a specified time and place, and to give notice 
thereof to the parents, if any, and shall thereupon inquire 
into their circumstances; and if it appear to be a proper 
case for binding such child, they shall proceed to bind said 
child as a servant, unless they shall deem the binding, 
under the circumstances, to be inexpedient.”’ 

The constitutionality of these apprentice laws was 
tested as early as 1867.57 A Negro girl, who had been a 
slave in Maryland and had been freed by the Constitution 
of that State, November 1, 1864, was, two days later, ap- 
prenticed by her mother to her former master. The laws 
governing Negro apprentices differed from those governing 
white apprentices in that the master did not obligate him- 
self to teach the Negro apprentice reading, writing, and 

57 


THE “BLACK LAWS” OF 1865-68 


arithmetic, and retained the right to transmit the appren- 
tice anywhere in the county. Upon a petition for a writ 
of habeas corpus, the Federal court held that the Maryland 
law resulted in practical slavery and, hence, violated the 
Thirteenth Amendment and the Civil Rights Bill of 1866. 

The other Southern States had apprentice laws, possi- 
bly as detailed as the ones here considered, but they can- 
not be treated of here because they applied to white and 
colored children alike. ; 


VAGRANCY LAWS 


The present vagrancy laws of the South have been 
much criticised for the reason, as it is alleged, that they 
are used to get recruits for chain gangs and convict camps, 
and that Negro vagrants are taken up while white vagrants 
go scotfree. Be that as it may, the fault hes with the offi- 
cers, not with the law, for the law, on its face, apples to 
both races equally. But the first years after the War did 
witness the enactment of vagrancy laws which had special 
application to Negroes. Some States passed vagrancy laws 
which made no race distinction, but, as in the case of ap- 
prentices, it is beyond dispute that they were aimed espe- 
cially at the Negro. 

The following persons South Carolina ** classed as va- 
grants: (1) all persons who have not some fixed and known 
place of abode, and some lawful and reputable employment ; 
(2) those who have not some visible and known means of 
a fair, honest, and reputable livelihood; (3) all common 
prostitutes ; (4) those who are found wandering from place 
to place, vending, bartering, or peddling any articles or | 

58 


VAGRANCY LAWS 


commodities without a license; (5) all common gamblers; 
(6) persons who jead idle or disorderly lives, or keep or 
frequent disorderly or disreputable houses or places; (7) 
those who, not having sufficient means of support, are able 
to work and do not work; (8) those who (whether or not 
they own lands, or are lessees or mechanics) do not provide 
a reasonable and proper maintenance for themselves and 
families; (9) those who are engaged in representing pub- 
licly or privately, for fee or reward, without license, any 
tragedy, interlude, comedy, farce, play, or other similar 
entertainment, exhibition of the circus, sleight-of-hand, 
waxworks, or the like; (10) those who, for private gain, 
without license, give any concert or musical entertainment, 
of any description; (11) fortune tellers; (12) sturdy beg- 
gars; (13) common drunkards; (14) those who hunt game 
of any description, or fish on the land of others or frequent 
the premises, contrary to the will of the occupants. That 
the South Carolina legislature had the Negro primarily in 
mind is shown by the fact that this section is included in 
the act “to establish and regulate the domestic relations of 
persons of color and to amend the law in relation to pau- 
pers and vagrancy.” 

Mississippi °° had a vagrancy list almost as extensive 
as that above with the addition that any freedmen, free 
Negroes, or mulattoes over eighteen years of age, found on 
the second Monday in January, 1866, or thereafter, with 
no lawful employment or business, or found unlawfully 
assembling themselves together in the day or night time, 
and white persons “so assembling with freedmen, free 
Negroes, or mulattoes . . . on terms of equality, or living 
in adultery or fornication with a freedwoman, free Negro, 
59 


THE “BLACK LAWS” OF 1865-68 


or mulatto,” should be considered vagrants. The white 
man so convicted was punishable by a fine of two hundred 
dollars and imprisonment for not more than six months; 
the Negro, by a fine of fifty dollars and imprisonment fi 
not over ten days. A Negro unable to pay his fine might 
be hired out for the purpose, but no such provision applied 
to whites. 


PAUPER LAWS 


Another perplexing problem that faced the Southern 
legislatures was how to meet the needs of the paupers, 
white and Negro. Much of the property of the white peo- 
ple hid been swept away entirely or had greatly deterio- 
rated in value as a result of the War. Few of the Negroes, 
to be sure, had property to lose, but what was worse, they 
had lost their right to look to the white people for suste- 
nance. Many of them were unable to support themselves, 
and the white people could not help them. The legisla- 
tures, therefore, adopted the plan of levying a tax upon 
each race for the support of its own indigents. South 
Carolina and Mississippi again took the lead. 

In South Carolina,*® when a person of color was un- 
able to earn his support and was likely to become a public 
charge, the father and grandfathers, mother and grand- 
mothers, child and grandchildren, brother and sister of 
such a person should each according to ability contribute 
for the support of his or her relative. In each judicial dis- 
trict there was a “ Board of Relief of Indigent Persons of 
Color,” consisting of from four to eight magistrates, each 
magistrate looking after the indigent Negroes in his pre- 


cinct. There was a fund, composed of fees paid for the 


60 


a) ee 


PAUPER LAWS 


approval of contracts for service, instruments of appren- 
ticeship, licenses, fines, penalties, forfeitures, and wages of 
convicts, for the relief of indigent Negroes. If this fund 
was insufficient, the board might impose a tax of one dollar 
upon all male persons of color between eighteen and fifty, 
and fifty cents upon each female between eighteen and 
forty-five. This tax had to be paid on the day fixed or the 
person rendered himself liable to pay a double tax. It was 
the duty of every occupant of premises to make a report 
to the magistrate of any indigent colored person thereon, 
and the magistrate had to make inquiry into the condition 
and wants of such Negroes so reported. Moreover, the 
magistrate had to make a semiannual report of the condi- 
tion of such Negroes to the chairman of the Board of Re- 
lief. The machinery for taking care of Negro paupers was 
worked out in more detail than it would be profitable to go 
into here. 

South Carolina made also these very humane provi- 
sions: Where, upon any farm or lands, there were, on De- 
cember 21, 1865, persons of color who were formerly the 
slaves of the owner, lessee, or occupant of the farm or 
lands present there on November 10, 1865, and had been 
there six months previous, helpless, either from old age, 
infancy, disease, or other cause, and unable to maintain 
themselves and had no parent or other relative able to main- 
tain them or to provide other houses or quarters, it was 
not lawful for the present or any subsequent owner, lessee, 
or occupant before January 1, 1867, to evict such helpless 
person of color, under penalty of a fine of fifty dollars, or 
imprisonment of one month. 

The law of Mississippi *t provided that the same liabili- 

61 


THE “BLACK LAWS” OF 1865-68 


ties should rest on Negroes to support their indigents as 
upon white persons to support theirs. It levied a tax of 
one dollar upon every freedman, free Negro, or mulatto 
between eighteen and sixty to go into the Freedmen’s Pau- 
per Fund. If a Negro refused to pay the tax, he might be 
arrested and hired out till he had worked out the amount. 


The Southern States between 1865 and 1868 passed 
many statutes relative to the marital relations of Negroes 
and to their right to testify in court. But these statutes 
are to be discussed in later chapters. It may be said, how- 
ever, in passing, that the district judge, so often referred 
to in connection with the South Carolina laws, was a special 
officer whose main duty was to preside over cases and dis- 
putes to which Negroes were parties. ; 

This chapter has been confined to the early industrial 
distinctions between the races—that is, to those laws which 
related to the rights of the Negro as a bread-winner. These 
are the distinctions brought forward by those who believed 
in radical reconstruction measures in the South, as an argu- 
ment for their position. It was urged by such that, unless 
Congress stepped in and took a hand, the Southern States 
would reénslave the Negro: they pointed particularly to the 
laws of Mississippi and South Carolina in confirmation of 
their contention. And there was apparently good ground 
for such a view. The laws providing that colored laborers 
should be called servants and their employers masters, that 
they should arise at a certain time and work so many hours 
per day, that they could not leave the premises or receive 
visitors without the master’s consent, and the like, sounded 
very much like prescribing the duties and privileges of a 

62 


PAUPER LAWS 


slave. But, on the other hand, many of the requirements 
were for the protection of the Negro. Such, for instance, 
were the statutes requiring contracts for service to be in 
writing and the terms of them explained to the Negro; that 
helpless ex-slaves should not be evicted from their old 
homes within two years from January 1, 1865; that Negro 
paupers should be cared for; and that the master must 
teach his apprentice to read and write, must give him good 
food and clothing, and treat him humanely. 

A discussion, however, of the merits of these early laws 
is out of place here. But it is only fair to remember, in 
reading them, that the Southern legislatures were, in many 
instances, only following precedents that had been set by 
the free States in dealing with free Negroes, and that the 
States, either Northern or Southern, had not yet looked 
upon the Negro as a citizen with the rights guaranteed him 
by the amended Federal Constitution. Industrial condi- 
tions in the South were so demoralized by the War and 
Emancipation that the legislatures considered it imperative 
upon them to take immediate and positive steps to establish 
an industrial relation between the races. 

Practically all of these laws were repealed or became 
dead letters as soon as the Fourteenth Amendment was 
passed or, at least, as soon as the government of the South- 
ern States went into the hands of the Reconstructionists. 
But they are still interesting historically as having fur- 
nished an argument for the radical régime of Reconstruc- 
tion which Thaddeus Stevens and his supporters inaugu- 
rated and advanced. 


63 


THE “BLACK LAWS” OF 1865-68 


NOTES 


1 Laws of Md., 1846-47, chap. 27. 

2 Art. ITI, sec. 48. 

8 Revised Stat., 1852, pp. 148-46. 

4 Laws of Mo., 1847, pp. 103-04. 

5 Wilson: “The Rise and Fall of the Slave Power in 
America,” II, p. 170. 

® Const., 1852, Art. XITI. 

7 This was held to be in violation of the Federal Consti- 
tution in Smith v. Moody, 1866, 26 Ind. 299, on the ground 
that the Negro had become a citizen and, as such, entitled 
to migrate from one State into another. 

8 The section of the statute which related to colonization 
was repealed in 1865 because the legislature thought that 
those authorized to act under the statute were not render- 
ing any adequate service to the State. Laws of Ind., 1865, 
p. 63. 

® Wilson: “The Rise and Fall of the Slave Power in 
America,” II, pp. 183-85. 

10 Pub. Laws of Ill, 1853, -p. 57. 

11 Repealed Feb. 7, 1865. Pub. Laws of IIl., 1865, p. 105. 

12 Laws of IJa., 1850-51, pp. 172-73. 

13 Repealed in 1864. Laws of Ia., 1864, p. 6. 

14 Gen. Laws of Ore., 1850-51, pp. 181-82. 

15 Flack: “The Adoption of the Fourteenth Amend- 
ment,” 1908, John Hopkins Press, pp. 20, et seg. 

16 Art, IV, sec. 19. 

17 Art. VITL. 

418 Laws of S. C., 1865, p. 271. 

19 Art. II, see. 5, par. 1. 

20 Laws of Ky., 1863, p. 366. 

21 Laws of S. C., 1865, p. 276. 

64 


NOTES 


22 Tn three places, at least, in North Carolina a Negro is 
not allowed to stay over night. They are Canton (Haywood 
County), Mitchell, and Madison Counties, all in the west- 
ern part of the State. Negroes may work unmolested all 
day, but, if they linger after nightfall, they are reminded 
that it would not be healthy for them to remain during the 
night. The Raleigh, N. C., News and Observer, Aug. 19, 
1906. Also see The Independent, vol. 59, p. 139, for a sim- 
ilar situation in Syracuse, Ohio, and Baker: “ Following the 
Colour Line,” pp. 71-73 and 126. | 

23 Code, 1867, sec. 1237. 

24 Code, 1867, sec. 1233; Laws of Ala., 1865-66, p. 105. 

25 Laws of S. C., 1865, p. 275. 

26 Tbid., p. 299. 

27 Laws of Miss., 1865, pp. 82-83. 

28 Laws of Tenn., 1865, p. 23. 

29 Laws of Fla., 1865, pp. 25 and 37. 

30 Laws of Miss., 1865, pp. 165-66. 

$1 Laws of S. C., 1865, p. 2775. 

32 Taws of Ala., 1865-66, p. 55. 

83 Laws of Ky., 1865-66, pp. 68-69. 

34 Laws of Miss., 1865, pp. 165-66. 

85 Laws of Ariz., 1867, p. 19; 1873, p. 78. 

86 Thid., 1883, p. 114. 

87 Laws of Idaho, 1879, p. 31. 

88 Laws of Dak. Ty., 1864-65, p. 192. 

89 Laws of Neb., 1881, p. 274; 1891, p. 267. 

49 Gen. Laws of N. M., 1880, p. 427; act 1876, chap. 28. 

41 Laws of Utah, 1882, p. 32. 

42 Laws of Ore., 1868, pp. 18-19. 

43 Laws of Wash., 1867, pp. 95-96. 

44 Revised Stat., 1903, p. 202. 

45 Laws of Fla., 1865, pp. 32-38. 

6 65 


THE “BLACK LAWS” OF 1865-68 


46 Tbid., 1866, p. 22. - 

47 Laws of Ky., 1865-66, p. 52. 

48 Laws of Miss., 1865, pp. 83-84. 

49 Laws of Va., 1865-66, p. 83; repealed in 1871—Laws of © 
Va., 1870-71, p. 147. 

50 Laws of S. C., 1865, pp. 295-299 and 275-76. 

51 Laws of Ala., 1865-66, pp. 128-31. 

52 Laws of Ky., 1865-66, pp. 49-50. 

53iaws of Miss., 1865, pp. 86-90. This was repealed 
Feb. 1, 1867—Laws of Miss., 1866-67, pp. 443-44. 

54 Laws of N. C., 1874-75, p. 92. 

55 Laws of S. C., 1865, pp. 292-95. 

56 Revised Code, 1852, as amended in 1893, p. 609. 

57 In re Turner, 1867, Fed. Case No. 14,247. 

58 Laws of S. C., 1865, pp. 303-04. 

59 Laws of Miss., 1865, pp. 90-93. 

60 Laws of S. C., 1865, pp. 299-303. 

61 Laws of Miss., 1865, pp. .92-93. 


CHAPTER V 


RECONSTRUCTION OF MARITAL RELATIONS OF NEGROES | 


OnE of the perplexing problems that arose out of 
Emancipation was the fixing of the marital relations among 
Negroes. It is generally known that the marriage ties be- 
tween slaves were loose and their domestic relations irregu- 
lar. In some instances, slave marriages were solemnized 
according to legal requirements, by either a white clergy- 
man or other proper officer of the law; in others, there was 
the common law marriage—that is, the parties lived to- 
gether as husband and wife under a simple, unrecorded 
agreement between themselves; in still other instances, 
there was deplorable promiscuity. 

When the Negro was made a citizen, it became neces- 
sary at once to settle his marital relations. If the usual 
slave marriages were not recognized as legal, then the off- 
spring of such unions were bastards with the usual disquali- 
fications of that class, among which is their partial inca- 
pacity to inherit property. In order to secure to Negroes 
the rights of heirs, it was necessary to legalize slave mar- 
riages, at least to the extent of giving to the children of 
such marriages the right of inheritance. This was accom- 
plished in one of three ways. Some States required the 
emancipated slaves to be remarried in order to legitimate 
their offspring; others required them to appear before an 

67 


MARITAL RELATIONS OF NEGROES 


officer, declare their desire to continue to live together, and 
get a certificate; others still, and these were in the major- 
ity, passed statutes legalizing all slave marriages. A few 
States did not adopt any one of these three methods but 
left it to the courts to recognize the legality of such mar- 
riages as cases arose. ; 


REMARRIAGES 


Among the States which adopted the method of remar- 
rying was Florida,’ which, by a law of 1866, required all 
colored persons living together as husband and wife, who 
had not been legally married, and who wished to continue 
so to live together, to be married within nine months from 
the passage of the statute on January 11th. If they failed 
to be married but continued to live together, they were pun- 
ished as guilty of fornication and adultery. By the second 
marriage, their children were legitimated. The law made 
it incumbent upon the clerk of the court, upon application 
by the parties and a tender of the required fee, to enter a 
certificate of marriage upon his register. Anyone practic- 
ing fraud upon Negroes by pretending to perform the mar- 
riage ceremony without authority to do so was guilty of a 
misdemeanor and punishable by a fine not exceeding one 
thousand dollars, imprisonment not over six months, or 
might be sentenced to stand in a pillory not over one hour. 
After the expiration of the nine months named in the stat- 
ute, the marriage requirements for white and colored per- 
sons were the same. This statute of 1866? was amended, 
on December 14, of the same year, to the effect that, if per- 


sons of color had lived together as husband and wife and ~ 


68 


REMARRIAGES 


had recognized each other as such, they were to be consid- 
ered married and their children to be legitimate. Thus, the 
necessity of a remarriage was obviated. ‘The amendment 
was added apparently because of the great number of in- 
dictments for adultery against those who had not complied 
with the law of January 11th. 

The Georgia * Constitution of 1865 directed the General 
Assembly at its next session to pass a law to legalize the 
existing slave marriages and to provide for the contracting 
and solemnizing of future marriages and, in connection 
with this, to define and regulate the Negro’s right to devise 
and inherit property. The General Assembly * responded 
in 1866 by enacting a statute by which persons of color then 
living together as husband and wife were declared to be 
so. If the man had two reputed wives or the wife two re- 
puted husbands, he or she must select one of the two as 
wife or husband, with her or his consent, and have the 
ceremony of marriage performed. If they continued to 
cohabit without making this choice, they were guilty of 
fornication and adultery. It was not enough to make the 
selection and live faithful to the one chosen; the marriage 
ceremony was a requisite.® Unless there were two reputed 
husbands or wives, the ceremony was not necessary. By 
the same act’ the children of slave marriages were legiti- 
mated, and Negro ministers were given a similar right to 
perform marriage ceremonies for Negroes as white minis- 
ters had for both races. 

Missouri,® in 1865, required all persons of color claim- 
ing to be married and wishing to continue in that relation 
to appear before some one authorized to perform the cere- 
mony and be joined in marriage. 

69 


MARITAL RELATIONS OF NEGROES 


The same year, South Carolina® passed a statute of 
ninety-nine sections relative to persons of color, eleven of 
which concerned their marital relations. This statute es- 
tablished the relation of husband and wife between persons 
of color, and declared that those then living as such were 
husband and wife. If a man had two or more reputed 
Wives or a woman two or more reputed husbands, he or she 
must choose one of them by April 1, 1866, and be remar- 
ried. Children born before the enactment of this law were 
declared to be the legitimate offspring of their mother, and 
of their putative father also if they were acknowledged by 
him. Thereafter, Negroes must be married as white peo- 
ple were—by a clergyman, judge, magistrate, or other judi- 
cial officer. The husband who abandoned his wife or the 
wife who abandoned her husband, might be bound out 
from year to year until he or she was willing to resume 
conjugal relations. An abandoned wife was free to make 
a contract for service. South Carolina has been appar- 
ently the only State to provide for the children of white 
fathers and Negro mothers. A law?® of 1872 declared 
that such children might inherit from their father if he 
did not marry another woman but continued to live with 
their mother. 


CERTIFICATES OF MARRIAGE 


Kentucky, Louisiana, and Maryland provided for the 
marriage of former slaves by the second method enumer- 
ated above, the granting of certificates. The Kentucky 
law 1 declared that all colored persons who had been liy- 
ing together as husband and wife and who continued to do 
so should be regarded as legally married and their children 

70 


CERTIFICATES OF MARRIAGE 


legitimate. But the man and woman must appear before 
the clerk of the county court and declare that they had 
been living and wished to continue to live as husband and 
wife. Upon payment of fifty cents, the clerk recorded the 
declaration, and for twenty-five cents more issued a certifi- 
cate thereof to the parties. It was not a sufficient compli- 
ance with the statute for the parties to continue to live to- 
gether without appearing before the clerk of the court.” 

An interesting case '* which arose under this Kentucky 
statute was as follows: A Negro woman, an ex-slave and 
living as the wife of another ex-slave, made her promissory 
note between the time of her emancipation and the date of 
this law. Under the provision of the statute, the man and 
woman appeared before the clerk of the court and obtained 
a marriage certificate. Later, she was sued on the note 
and pleaded coverture. At that time a married woman 
could not make a valid contract in her own name. The 
court held the plea bad, being of opinion that, as between 
the parties to the marriage, the statute validated their 
union from the beginning, but as to third parties, the 
woman was still single and so capable of making a valid 
contract. 

In 1895, the same court’ held that, if a Negro man and 
woman lived together while slaves as husband and wife, a 
customary marriage was established, the court saying in its 
opinion: “ Since the passage of the Act of February, 1866, 
. . . the general tendency of the decisions of this court has 
been to give that Act of 1866 a liberal construction with a 
view to effectuate its clearly defined purpose.” And a late 
statute +> of 1898 further modified the law of 1866 by de- 
claring that the children of above marriages might inherit 

ral 


SP 


MARITAL RELATIONS OF NEGROES 


property. If there was a subsequent marriage and children 
born of it, the slave children shared with them pro rata. 

A statute of Louisiana,** in 1868, legalized all private 
or religious marriages, provided that the parties, within 
two years, made a declaration of their marriage before a 
notary public or other competent officer, giving the date 
of the marriage and the number and ages of the children. 
Though the statute did not mention Negroes, it must have 
been passed for their benefit. 

In 1873, the following case *” came before the Louisiana 
court: A Negro’s parents, who had lived together as hus- 
band and wife, died before Emancipation. The majority of 
the court held that, if they had lived till after Emancipa- 
tion, their children would have been capable of inheriting 
their property, but, since they died before Emancipation, 
their marriage was never legalized, and their offspring 
could not so inherit. The dissenting opinion was that, 
since the slaves had done all they could to be legally mar- 
ried, they should be recognized as married and their chil- 
dren should be legitimated. 

Maryland,'* in 1867, confirmed and made valid all pre- 
vious marriages between colored persons, but required them 
to prove before a justice of the peace that they had been so 
married; and a certificate to that effect had to be filed with 
the clerk of the court. Thereafter, colored persons must 
secure licenses and be married in the same manner as white 
people. 


02 


SLAVE MARRIAGES DECLARED LEGAL BY STATUTE 


SLAVE MARRIAGES DECLARED LEGAL BY STATUTE 


The last of the three methods of reconstructing the 
domestic relations of former slaves was by declaring slave 
marriages legal by statute. On September 29, 1866, the 
Constitutional Convention of Alabama, which adopted an 
ordinance prohibiting slavery, also enacted *° that all mar- 
riages between freedmen and freedwomen, whether dur- 
ing slavery or after, solemnized by one having or claim- 
ing to have the authority, should be valid, if the parties 
were still living together. It was subsequently held that, 
under this act, the woman had a right of dower, although 
the man had abandoned her and married another woman 
within a month after such act was passed.?° In 1870, the 
Supreme Court of the State held that the children of slave 
marriages were not bastards, that by the elevation of their 
parents to citizenship, their heritable blood was restored.*+ 

Arkansas,?* in 1866, legalized marriages of all persons 
of color who then lived together as husband and wife and 
made their children legitimate, but provided that thereafter 
all marriages of persons of color must be recorded. 'The 
same year Tennessee ** passed a similar statute. 

The Constitution ** of Texas of 1869 declared that all 
persons should be considered legally married who in sla- 
very lived as husband and wife and after Emancipation 
either continued to live together till one died or were liv- 
ing together at the time of the adoption of the Constitution. 
Such a marriage completed by cohabitation after Emanci- 
pation was valid, though the parties separated within five 
months and were not living together at the time of the 
adoption of the Constitution.*® 

(63) 


MARITAL RELATIONS OF NEGROES 


The law of Virginia ** provided that persons of color 
living as husband and wife on February 27, 1866, whether 
or not any ceremony had been performed, should be consid- 
ered as lawfully married and their children legitimate. If 
they had separated prior to that date the children of the 
woman, if recognized by the man to be his, were neverthe- 
less legitimate. West Virginia °** had practically the same 
law, except the latter clause about recognition by the father. 

Illinois,?* as late as 1891, passed a statute to legalize 
slave marriages and legitimate the children thereof. But 
this law did not apply to a voidable slave marriage in an- 
other State, disaffirmed by a subsequent. legal marriage 
before the enactment of the statute.2® A similar decision 
under a similar statute was rendered in Ohio *° in 1883. 
These decisions would indicate that a slave marriage was 
valid only if there was no subsequent marriage of either 
party to a third person In 1876, New York ** recog- 
nized as valid slave marriages contracted in slave States 


1 


with the consent of the master. 


MARRIAGES BETWEEN SLAVES AND FREE NEGROES 


Statutes relative to marriages between free Negroes and 
slaves are not numerous. Presumably, the term “ persons 
of color” included both Negroes born free and those who 
had been slaves. A Tennessee court,*? in 1882, held that 
the formal marriage of a free Negro and a slave, with the 
consent of the master, followed by a cohabitation for years, 
was a valid marriage and entitled the woman to dower. 


74, 


FEDERAL LEGISLATION 


FEDERAL LEGISLATION 


The Congress of the United States has had occasion to 
pass upon the validity of slave marriages only in connec- 
tion with pensions to the descendants of colored soldiers. 
An act ** of 1873 provided that, in determining whether the 
widow of a Negro or Indian soldier and sailor is entitled 
to a pension, it is necessary only for the claimants to show 
that she was married according to some ceremony, which 
she and the deceased deemed obligatory, that they habit- 
ually recognized each other as husband and wife, and were 
so recognized by their neighbors, and that they lived to- 
gether up to the date of his enlistment. It was also pro- 
vided that the children of such marriages might claim 
their father’s pension. 


Though they proceeded in different ways, practically 
all of the States arrived at the same result. If slaves were 
married according to the custom, if they lived as husband 
and wife both before and after Emancipation, their union 
was considered a valid marriage to all intents and purposes 
and the children thereof might inherit. Where the procure- 
ment of a certificate or remarriage was required, if one of 
the parties took advantage of the opportunity to be freed 
from the early alliance, as happened in several amusing in- 
stances, and took another spouse, the second marriage was 
the valid one, and the children of the slave union could not 
inherit their parents’ property. 

It scarcely needs to add that, at present, the marriage 
requirements as to license, age, etc., are in all States pre- 
cisely the same both for white and colored people. 

75 


MARITAL RELATIONS OF NEGROES 


NOTES 


1 Laws of Fla., 1865, p. 31. 

2 Tbid., 1866, p. 22. 

8 Art. LI, see. 5, par. 5. 

4 Laws of Ga., 1865-66, p. 240. 4 

5 Comer vy. Comer, 1892, 91 Ga. 314. 

6 Williams y. State, 1881, 67 Ga. 260. 

7 Laws of Ga., 1866, p. 156. 

® Laws of Mo., 1864, p. 68. 

® Laws of S. C., 1865, pp. 291-92. 

10 Thid., 1871-72, pp. 162-63. 

11 Laws of Ky., 1865-66, p. 37. 

12 Kstill vy. Rogers, 1866, 1 Bush (Ky.) 62. 

18 Stewart, of color, v. Munchandler, 1867, 2 Bush (Ky.) 
278. 

14 Scott v. Lairamore, 1895, 32 S. W. 172. 

15 Laws of Ky., 1898, pp. 102-08. 

16 Revised Stat. of La., 1870, p. 486, sec. 2212. 

17 Pierre vy. Fontennette, 1873, 25 La. Ann. 617. 

18 Laws of Md., 1867, p. 858. 

19 Code, 1867, p. 64 

20 Washington v. Washington, 1881, 69 Ala. 281. 

21 Stikes v. Swanson, 1870, 44 Ala. 633. See Haden vy. 
Tvey, 1874, 51 Ala. 381. 

22 Acts, of Ark., 1866-67, p. 52. 

23 Laws of Tenn., 1865-66, pp. 65 and 81; Laws, 1869-70, 
p.| 92, 

24 Art. XII, sec. 27. 

25 Cumby v. Garland, 1894, 25 S. W. 673; Coleman vy. 
Vollmer, 1895, 31 S. W. 413. 

26 Laws of Va., 1865-66, pp. 85-86. 

27 Laws of W. Va., 1866, p. 102; Laws, 1872-73, p. 502. 

76 


NOTES 


28 Laws of IIl., 1891, pp. 163-64. 

29 Butler v. Butler, 1896, 44 N. E. 203. 

30 McDowell v. Sapp, 1883, 39 O. S. 558. 

31 Minor v. Jones, 1876, 2 Redf. Sur. (N. Y.) 289. 
82 Down v. Allen, 1882, 78 Tenn. (10 Lea) 652. 
3317 Stat. L., 570, chap. 234, par. 11. 


CHAPTER VI 
INTERMARRIAGE AND MISCEGENATION 


ONE race distinction, which has not been confined to the 
South, and which has, in a large measure, escaped the ad- 
verse criticism heaped upon other race distinctions is the 
prohibition of miscegenation between the Caucasian and 
the colored races. The term “ miscegenation”’ includes 
both intermarriage and all forms of illicit intercourse be- 
tween the races. ‘Twenty-six States and Territories, in- 
cluding all the Southern States, have laws forbidding the 
admixture of the races; applying not only to Negroes, but 
also to Indians and Mongolians in States where the latter 
races are present in considerable numbers. 


INTERMARRIAGE DURING RECONSTRUCTION 


It is significant that during the years of Reconstruction 
in the South, when the Federal and State governments 
were endeavoring to eradicate race distinctions, none of the 
statutes against miscegenation appear to have been repealed. 
There is some meager authority—a case which arose in 
Tennessee * in 1872, and two cases in North Carolina? in 
1877—which might tend to show that the statutes of two 
Southern States were repealed. The Tennessee court was 


of opinion that intermarriage was not prohibited in Mis- — 


78 


INTERMARRIAGE DURING RECONSTRUCTION 


sissippi, and the North Carolina courts arrived at the same 
conclusion about South Carolina; but neither court speci- 
fied the years to which its statement applied, and a careful 
examination of the annual laws of Mississippi and South 
Carolina between 1865 and 1880 reveals no statutes repeal- 
ing the laws against intermarriage in those States. One is 
led to conclude, therefore, that the statutes against misce- 
genation were disregarded in a few instances during Re- 
construction, rather than repealed. This conclusion is 
helped out by the fact that the legislatures manifested no 
inclination to permit miscegenation. The legislature of 
South Carolina,* for instance, in 1865, before the State 
government went into the hands of the Reconstructionists, 
enacted laws, covering twenty-five or more finely printed 
pages, defining the rights of Negroes in the most minute 
details, as was seen in considering the “ Black Laws” of 
1865-68. ‘These laws were repealed nine months later, but 
the legislature was careful to add that the repealing act did 
not apply to that part of the Act of 1865 which said that 
marriage between a white person and a person of color 
should be illegal and void. The legislature of Texas,* in 
like manner, on November 10, 1866, repealed most of its 
statutes relating to free Negroes, but added that nothing 
in the act should be construed to repeal any laws prohibit- 
ing intermarriage of the white and black races. The re- 
pealing statute of Arkansas® of February 6, 1867, made 
practically the same exception as to intermarriage. 

Determined as many of the Reconstruction promoters 
were to wipe out every vestige of legally recognized race 
distinctions, they did not allow their zeal to carry them 
- to the extent of legislating as to the social relations of the 
79 


INTERMARRIAGE AND MISCEGENATION 


races. Georgia, probably fearing that some legislature 
might attempt to enact such measures, in its Constitutions 
of 1868°® and 18777 had this general statement: “ The 
social status of the citizen shall never be the subject of leg- 
islation.” It would seem, on first thought, that this re- 
quirement would defeat its own purpose. If marriage is a 
social status and if legislation as to the social status of the 
citizen is forever prohibited, how can a law prohibiting 
intermarriage be constitutional? In a test case ® that arose 
in 1869 the Supreme Court of the State very neatly ex- 
plained away this apparently embarrassing situation by 
saying, in effect, that the clause in the Constitution applied 
only to future legislation, and it did not affect the law pro- 
hibiting intermarriage then in force. After quoting that 
clause in the Constitution, the court went on to say: 
“In so far as the marriage relation is connected with the 
social status, the very reverse is true. That section of the 
Constitution forever prohibits legislation of any character 
regulating or interfering with the social status. It leaves 
social rights and status where it finds them. It prohibits 
the legislature from repealing any laws in existence, which 
protect persons in the free regulation among themselves of 
matters properly termed social, and it also prohibits the 
enactment of any new laws on that subject in the future.” 
The Constitution of Alabama ® of 1901 provides against 
possible meddling by the legislature with domestic rela- 
tions in more outspoken terms: “The legislature shall 
never pass any law to authorize or legalize any marriage 
between any white person and a Negro or descendant of a 
Negro.” 


80 


TO WHOM THE LAWS APPLY 


PRESENT STATE OF THE LAW AGAINST INTERMARRIAGE 


The present situation as regards intermarriage is as fol- 
lows: Intermarriage between the Caucasian and other races 
is prohibited by the Constitutions of six States, all South- 
ern, namely: Alabama,’ Florida,’® Mississippi,’ North 
Carolina,’? South Carolina,*® and Tennessee.** Intermar- 
riage is prohibited by statute also in the above States 
and in twenty other States and Territories, namely: Ala- 
bama,’® Arizona,!® Arkansas,17 California,’® Colorado,’ 
Delaware,”° Florida,?4 Georgia,?? Idaho,?* Indiana,?* Ken- 
tucky,?® Louisiana,?® Maryland,?* Mississippi,?* Missouri,?° 
Nebraska,®° Nevada,*! North Carolina,?? Oklahoma,®* Ore- 
gon,** South Carolina,®® Tennessee,?® Texas,?7 Utah,** 
Virginia,*® and West Virginia.*° 


TO WHOM THE LAWS APPLY 


In the interpretation of these statutes against inter- 
marriage, it is necessary, at the outset, to determine just 
who are included. If the statutes had simply enacted that 
there should be no intermarriage between Caucasians, on the 
one side, and Negroes, Indians, or Mongolians, on the other, 
they would have left the great body of mixed-blooded people 
to miscegenate as they pleased. Most of the States avoided 
this difficulty by stating clearly to whom the laws apply. 
Virginia and Louisiana are the only States simply to 
enact in general terms that there shall be no intermarriage 
between white persons and persons of color; and even in 
Virginia judicial decisions clearly define the term “ person 
- of color,” so there is no difficulty in knowing who is meant 
7 81 


INTERMARRIAGE AND MISCEGENATION 


by the statute. Arkansas, Colorado, Delaware, Idaho, and 
Kentucky prohibit intermarriage between white persons 
and Negroes or mulattoes. Georgia, Texas, and Oklahoma 
place within the prohibition of their statutes persons of 
African descent; West Virginia, Negroes; and Florida, 
Negroes, expressly including every person with one-eighth 
or more of Negro blood. Alabama makes its law apply to 
Negroes and their descendants to the fifth generation, 
though one ancestor of each generation was white. The 
Indiana and Missouri statutes extend to all persons having 
one-eighth or more Negro blood; Maryland to Negroes or 
persons of Negro descent to the third generation inclusive. 
Tennessee includes within the prohibition Negroes, mulat- 
toes, or persons of mixed blood descended from a Negro to 
the third generation inclusive. The Nebraska law applies 
to persons of one-fourth or more Negro blood. 

The States which have a large Indian or Mongolian 
population include these races within the prohibition. 
Thus, Arizona prohibits whites to intermarry with Negroes, 
Mongolians, or Indians and their descendants; California, 
with Negroes, Mongolians, or Indians and their descen- 
dants; California, with Negroes, Mongolians, or mulat- 
toes. It is interesting to note that the word “ Mongolian ” 
was not added to the California statute ** till 1905. This 
addition, coming, as it does, so nearly contemporaneous 
with the school trouble in San Francisco, is evidence that 
California is facing a race problem which it considers seri- 
ous. The Mississippi law applies to Negroes, mulattoes, 
persons who have one-eighth or more Negro blood, Mongo- 
_ lians or persons who have one-eighth or more Mongolian 
blood. Nevada includes black persons, mulattoes, Indians, © 

82 


EFFECT OF ATTEMPTED INTERMARRIAGE 


Chinese; Oregon, in addition to Negroes, prohibits inter- 

marriage with Chinese and with persons having one-fourth 
or more Negro, Chinese, or Kanaka blood or having more 
than one-half Indian blood. Utah includes simply Negroes 
and Mongolians; North Carolina, Negroes and Indians. 
South Carolina prohibits intermarriage between whites and 
Indians, Negroes, mulattoes, mestizoes, or half-breeds. 


EFFECT OF ATTEMPTED INTERMARRIAGE 


Suppose a white person and a person within any of the 
prohibited classes do attempt to intermarry. What is the 
legal result? Indiana, Kentucky, Maryland, Nebraska, 
North Carolina, and Utah declare that such a marriage is 
void; Colorado, Missouri, and Virginia, that it is absolutely 
void; Arizona, Georgia, Oregon, and Tennessee, that it is 
null and void; Delaware and Mississippi, that it is unlaw- 
ful and void; and Arkansas, California, and Idaho, that it 
is illegal and void. The law of Florida declares that such a 
marriage is unlawful, utterly null and void and the issue 
bastards and so incapable of inheriting. Louisiana pro- 
vides that such a marriage is prohibited, the celebration of 
it forbidden, that the celebration carries with it no effect, 
and that the marriage is null and void. South Carolina 
enacts that it is “ utterly null and void and of none effect.” 
The only legal effect of a marriage thus declared void is to 
impose criminal liability upon the parties to it. The re- 
sult is precisely the same as if no license had been obtained 
or ceremony performed and the parties had been indulging 
in illicit relations. A Virginia decision says: “ No matter 
by what ceremonies or solemnities, such marriage would 

83 


INTERMARRIAGE AND MISCEGENATION 


have been the merest nullity, and the parties must have 
been regarded under our laws, as lewdly associating and. co- 
habiting together. . . .” * 

The other States which prohibit intermarriage simply 
declare that marriage between white persons and Negroes 
is illegal and prescribe a punishment for the violation of 
the statute against miscegenation, but do not further define 
the legal effect of such a marriage contract. But whether 
the marriage is declared “void” or “null and void” or 
“absolutely void ” or only “illegal,” the result is the same. 


PUNISHMENT FOR INTERMARRIAGE 


Persons of different races who attempt to intermarry in 
violation of the laws subject themselves everywhere to 
severe penalties. In Alabama, the law says they shall be 
imprisoned in the penitentiary for not less than two, nor 
more than seven years. In Colorado, they are guilty of 
a misdemeanor and punishable by a fine of from fifty dol- 
lars to five hundred dollars, or imprisonment for not less 
than three months nor more than two years, or both. In 
Delaware, they are guilty of a misdemeanor and may be 
fined one hundred dollars. Florida says they shall be im- 
prisoned in the State penitentiary not exceeding ten years 
or fined not exceeding one thousand dollars. In Indiana, 
if they knowingly violate the 4aw—that is, if the white 
person knows the other is a Negro or of mixed blood—they 
are fined not less than one hundred dollars nor more than 
one thousand dollars, or imprisoned in the State prison 
not less than one nor more than ten years. Maryland de- 
clares that they are guilty of an infamous crime, punish- — 

84 


PUNISHMENT FOR INTERMARRIAGE 


able by imprisonment in the penitentiary not less than 
eighteen months nor more than ten years. Mississippi 
makes the punishment a fine of five hundred dollars, im- 
prisonment not exceeding ten years, or both. The law of 
Missouri declares that one who knowingly intermarries in 
violation of the statute shall be punished by imprisonment 
in the penitentiary two years or by a fine not less than 
one hundred dollars, or by imprisonment in the county 
jail not less than three months, or by both such fine and 
imprisonment, and adds that the jury shall determine 
the amount of Negro blood by appearance. Nevada enacts 
that the parties are guilty of a misdemeanor and shall 
be imprisoned in the State prison not less than one nor 
more than two years. North Carolina brands an attempted 
intermarriage as an infamous crime to be punished by 
imprisonment in the county jail or State prison not less 
than four months nor more than ten years, and the parties 
may also be fined at the discretion of the court. Okla- 
homa makes it a felony and provides that the parties shall 
be punished by a fine of not less than one hundred dol- 
lars nor more than five hundred dollars or imprisonment 
not less than thirty days nor more than one year, or both. 
Oregon simply makes it an offence punishable by impris- 
onment in the penitentiary or county jail between three 
months and one year. South Carolina ** declares at- 
tempted intermarriage is a misdemeanor punishable by 
a fine of not less than five hundred dollars or imprisonment 
in the penitentiary from one to five years. Texas, by a 
law of 1858, still in force in 1879, prescribed a punish- 
ment for the white person who attempted to marry a 
Negro but no punishment for the Negro. A_ Federal 
85 


INTERMARRIAGE AND MISCEGENATION 


court ** held that the difference of punishment was in vio- 
lation of the Fourteenth Amendment, but that the law 
against intermarriage was constitutional. Virginia pro- 
vides that the parties shall be confined in the penitentiary 
not less than two nor more than five years. West Vir- 
ginia would confine them in jail not over one year and 
fine them not exceeding one hundred dollars. Thus, it 
appears that in most of the States intermarriage is con- 
sidered a very serious offence, ranking in Colorado, Dela- 
ware, Nevada, and South Carolina, as a misdemeanor; in 
Louisiana and North Carolina as an infamous crime; and 
in Tennessee and Oklahoma as a felony. 


PUNISHMENT FOR ISSUING LICENSES 


With no less severity do the States punish those who is- 
sue licenses to persons of one race to marry those of an- 
other. Alabama declares that anyone knowingly issuing 
a license for the marriage of a white and colored person 
shall be fined not less than one hundred dollars nor more 
than one thousand dollars and may also be imprisoned 
in the county jail or sentenced to hard labor for the county 
for not more than six months. Colorado makes it a misde- 
meanor punishable by a fine of one hundred dollars. Flor- 
ida punishes it by imprisonment not exceeding two years 
or a fine not exceeding one thousand dollars. North Caro- 
lina simply declares it to be a misdemeanor without pre- 
scribing any punishment different from that for other 
misdemeanors. Oklahoma makes it a misdemeanor pun- 
ishable by a fine of not less than one hundred nor more 
than five hundred dollars, or imprisonment in the county — 

86 


PUNISHMENT FOR PERFORMING THE CEREMONY 


jail not less than thirty days nor more than one year, or 
both. 


PUNISHMENT FOR PERFORMING THE CEREMONY 


A heavy penalty is laid also upon one who performs 
the ceremony for those who marry in violation of the laws 
against miscegenation. Alabama provides that any justice 
of the peace, minister, or other person, who knowingly 
performs the marriage ceremony between a white and 
colored person, shall be fined not less than one hundred 
dollars nor more than one thousand and, at the discretion 
of the court, imprisoned in the country jail or sentenced 
to hard labor for the county for not more than six months. 
Arkansas makes anyone performing such a ceremony guilty 
of a high misdemeanor punishable by a fine of not less 
than one hundred dollars. Colorado declares that to per- 
form the ceremony is a misdemeanor punishable by a fine 
of between fifty dollars and five hundred dollars or im- 
prisonment between three months and two years, or both. 
In Delaware, it is a misdemeanor, and the punishment is 
a one hundred dollar fine. Florida either imprisons the 
person performing the ceremony not over one year or im- 
poses a fine on him not exceeding one thousand dollars. 
North Carolina simply defines it as a misdemeanor. In- 
diana declares that one who knowingly counsels or assists 
in such a marriage shall be fined not less than one hundred 
dollars nor more than one thousand dollars. Nevada 
makes one who performs the ceremony guilty of a mis- 
demeanor and subjects him to imprisonment in the State 
prison not less than one year nor more than three years. 
Oklahoma makes it a misdemeanor and imposes a fine of 

87 


INTERMARRIAGE AND MISCEGENATION 


between one hundred dollars and five hundred dollars, or 
imprisonment between three months and a year, or both. 
The law of Oregon declares that one who wilfully and 
knowingly performs such marriage ceremony shall be im- 
prisoned in the penitentiary or county jail. from three 
months to one year and fined from one hundred dollars to 
one thousand dollars. South Carolina provides that one 
who knowingly and willingly unites persons of different 
races in the bonds of matrimony shall be guilty of a mis- 
demeanor and punished by a fine of not less than five hun- 
dred dollars nor more than twelve months’ imprisonment, 
or both. Virginia declares that he shall forfeit two hun- 
dred dollars, of which the informant shall get one-half; 
and West Virginia provides that the one who knowingly 
performs the ceremony shall be guilty of a misdemeanor 
and fined not over two hundred dollars. 


COHABITATION WITHOUT INTERMARRIAGE 


A few States have statutes relative to illicit relations 
between white and colored persons, where no marriage is 
pretended to exist. Alabama imposes for this offence upon’ 
both man and woman the same punishment as for inter- 
marriage; a living together in adultery one day with in- 
tent to continue that relation has been held to constitute 
a violation of the statute.t® Florida declares that, if any 
white person and Negro or mulatto shall live together in 
adultery or fornication with each other, each shall be pun- 
ished by imprisonment not exceeding a year, or by a fine 
not exceeding a thousand dollars. The law adds that any 
Negro man and white woman or any white man and Negro | 

88 


STATES REPEALING LAWS AGAINST INTERMARRIAGE 


woman, not married to each other, who habitually live in 
and occupy in the night-time the same room, no other per- 
son over fifteen years of age being present, shall be pun- 
ished by imprisonment not exceeding twelve months, or 
by a fine not exceeding five hundred dollars. Nevada pro- 
vides that, if any white person shall live and cohabit with 
any black person, mulatto, Indian, or Chinese, in a state 
of fornication, such person so offending shall be fined not 
over five hundred and not less than one hundred dollars, 
or imprisonment in the county jail between one and six 
months, or both. Louisiana ** has the most recent and the 
most thorough-going statute against miscegenation; it was 
adopted July 1, 1908. It provides that concubinage be- 
tween a white person and a Negro is a felony, punishable 
by imprisonment for not less than one month nor more 
than one year. Concubinage is defined as unlawful co- 
habitation of white persons and Negroes whether open or 
secret. It was made the duty of the judges to specially 
charge the grand juries upon this statute. 

The most interesting feature about these statutes is 
that they impose a heavier penalty for cohabitation between 
a white and a colored person than between two members 
of the same race. Yet they have been held to comply with 
the Constitution of the United States. The reasons why 
such, statutes are held to be constitutional will be con- 
sidered later. 


STATES REPEALING LAWS AGAINST INTERMARRIAGE 


Only five States that once had laws against miscegena- 
tion have repealed them since 1865. New Mexico,*? in 
89 


INTERMARRIAGE AND MISCEGENATION 


1866, Rhode Island,*® in 1881, and Maine,*® in 1883, re- 
pealed their laws against intermarriage outright. A 
statute of Michigan °° in 1883 provided that all marriages 
theretofore contracted between white persons and those 
wholly or in part of African descent should be valid and 
effectual and the offspring legitimate, but it said nothing 
about marriages contracted in the future. Professor Fred- 
erick J. Stimson *! has apparently interpreted the statute 
to apply to marriages in the future as well as to those 
already contracted. Finally, Ohio ** in 1887 repealed its 
law of 1877, providing for the punishment of persons of 
“pure white blood” who intermarry or have carnal in- 
tercourse with any Negro or person having a distinct and 
visible admixture of African blood. 


MARRIAGES BETWEEN THE NEGRO AND NON-CAUCASIAN 
RACES 


It is significant that the States have not prohibited in- 
termarriage between two different races except where one 
is the Caucasian. In no State is it unlawful for Mon- 
golians and Indians, Negroes and Mongolians, or Negroes 
and Indians to intermarry. The only exception to the last 
is that in North Carolina ** it is unlawful for Negroes to 
intermarry with Croatan Indians or to go ta the same 
school with them. To this statute hangs a beautiful his- 
torical tradition. In 1585, the date of the first attempt 
by Englishmen to colonize the New World, there was an 
island off the coast of North Carolina called Croatoan. 
By the shifting of the sands, it is now probably a part 
of Hatteras or Ocracoke Island. In 1587, a colony of one . 

90 


MARRIAGES BETWEEN NEGRO AND NON-CAUCASIAN 


hundred and seventy-seven persons under John White was 
landed by Sir Walter Raleigh on this island. Here, the 
same year, was born Virginia Dare, granddaughter of John 
White and the first child of English parents born in Amer- 
ica. Later, part of the colonists under White had to go 
back to England to seek further aid. By agreement, those 
left behind were to go over to the friendly Croatoan Indi- 
ans if they needed succor. When Governor White returned 
many months later, he found the settlement deserted and 
carved upon a tree nearby the single word “ Croatoan.” 
This supposedly meant that the colonists had gone over 
to the Croatoans. For some unexplained reason, the party 
under White never went in search of their lost brethren. 
Not a word more has ever been heard of Virginia Dare and 
the others. A tradition says that they went over to the 
Croatoans and eventually became absorbed into that tribe.** 
Credence is given to this by the fact that there are many 
Croatoan Indians—now called Croatans—with light com- 
plexion and blue eyes. Recently a considerable body of 
mixed-blooded Indians in Robeson County, North Caro- 
lina, have laid claim to descent from this lost colony, and 
the State has officially recognized them under a separate 
name as the “ Croatan Indians.” Thus, all that is left of 
Virginia Dare and the Lost Colony is this tradition sup- 
ported by the presence of Indians with fair skin and blue 
eyes, and the statute of North Carolina that the blood of 
these early settlers shall not be further adulterated, by 
miscegenation, with the blood of the Negro. 


91 


INTERMARRIAGE AND MISCEGENATION 


EFFECT GIVEN TO MARRIAGES IN OTHER STATES 


The next question is the interpretation of the laws 
against intermarriage. What effect will a State that pro- 
hibits miscegenation give to a marriage between a white 
person and Negro in a State that permits intermarriage ? 
What effect, for instance, will Virginia give to a marriage 
of a white woman to a Negro man contracted in Massachu- 
setts if the parties go to Virginia to live? If the Negro 
and white woman were residents in good faith of Mas- 
sachusetts or of some State that permits intermarriage 
at the time of their marriage, their marriage will, as 
a general rule, be recognized as valid everywhere—even 
in the Southern States. Several States, including Arkan- 
sas, Colorado, Idaho, Indiana, Kentucky, and probably 
others, in their statutes prohibiting intermarriage make 
the provision that, if the marriage is valid where con- 
summated, it will be considered valid by those States. A 
Tennessee *° court in 1872 did refuse to recognize as valid 
a marriage celebrated in Mississippi when intermarriage 
was permitted in Mississippi, but this appears to be the 
only case taking that view. 

If, on the other hand, the parties leave a State which 
prohibits intermarriage and go to another State which 
allows it, solely for the purpose of evading the laws of the 
former State, the authority is practically unanimous that 
the marriage is not valid in the State the laws of which 
they attempted to evade. This point is covered both by 
statute and by judicial decision. A Delaware statute, for 
instance, declares that the Negro and white person are 
equally guilty if they are married in another State and 

92 | 


EFFECT GIVEN TO MARRIAGES IN OTHER STATES 


move into Delaware as if they had been married in Dela- 
ware. Mississippi, also, punishes parties attempting to 
evade its laws by marrying out of the State and return- 
ing to Mississippi, to the same extent as if they had 
attempted to intermarry in Mississippi. The Georgia stat- 
ute, which is typical, is as follows: “ All marriages solem- 
nized in another State by parties intending at the time 
to reside in this State shall have the same legal conse- 
quences and effect as if solemnized in this State. Parties 
residing in this State cannot evade any of the provisions 
of its laws as to marriage by going into another State 
for the solemnization of the ceremony.” Statutes to the 
same effect are in force in Arizona, Virginia, West Vir- 
ginia, and possibly other States. In the absence of statute, 
the point is covered with the same result by judicial de- 
cision. In the Tennessee case, to which reference has al- 
ready been made, the court said: “ Hach State is sover- 
eign, a government within, of, and for itself, with the 
inherent and reserved right to declare and maintain its own 
political economy for the good of its citizens, and cannot 
be subjected to the recognition of a fact or aet contra- 
vening its public policy and against good morals, as law- 
ful, because it was made or existed in a State having no 
prohibition against it or even promoting it.” 

In 1878, a Negro man and a white woman went over 
from Virginia °* into the District of Columbia, were mar- 
ried, and returned to Virginia, where they were prosecuted. 
The Virginia court held that, although the forms and 
ceremonies of marriage are governed by the laws of the 
place where marriage is celebrated, the essentials of the con- 
tract depend upon and are governed by the laws of the 

93 


INTERMARRIAGE AND MISCEGENATION 


country where the parties are domiciled at the time of the 
marriage, and in which the matrimonial residence is con- 
templated. This case was affirmed by the Federal court 7 
the next year. A Georgia ** couple who also went to the 
District of Columbia to be married, returned to their na- 
tive State, where they were indicted and convicted for 
violating the Georgia statute against intermarriage. 

It appears that Washington has been and is the City of 
Refuge for such miscegenating couples. It has been held, 
however, in every case, that, when these people return to 
Southern States, no matter where married, they are amen- 
able to the laws of those States. In fact, there appears to 
be only one American case with regard to Negroes which 
holds a contrary doctrine, the case of Medway v. Need- 
ham.*® There a white person and Negro, living in Mas- 
sachusetts, which at the time, 1819, prohibited intermar- 
riage, went to Rhode Island, where they were married and 
whence they immediately returned. The Supreme Court 
of Massachusetts held that a marriage, if valid where 
celebrated, is valid everywhere; the court taking no ac- 
count of the purpose of the parties to evade the law. In 
rendering this decision, the Court admitted that it was 
going counter to the opinion of eminent jurists. The de- 
cision has not been followed, it appears, by any other 
court. It may be taken as settled that, if the parties leave 
the State for the purpose of evading its law, intending at 
the time to return to that State, the marriage will not be 
recognized as valid when they do return. But, if they leave 
the State to evade the law, not intending at the time to 
return and do gain a bona fide residence in another State 
and, after that, do return, the marriage will be recognized. 

94. 


INTERMARRIAGE AND THE FEDERAL CONSTITUTION 


In other words, to furnish a State grounds to declare void 
a marriage celebrated ‘in another State where it is valid, 
the parties must intend not only to evade the law but also 
not to gain a bona fide residence in the State to which 
they go. 

Efforts have been made to prohibit intermarriage in the 
District of Columbia. At the last session of the Six- 
tieth Congress, Senator Milton, of Florida, introduced 
a bill to make intermarriage between white persons and 
Negroes a crime punishable by imprisonment for ten years 
and a fine of one thousand dollars, providing that one 
with one-eighth or more Negro blood should come within 
the prohibition, declaring such marriages to be null and 
void and the issue resulting from them illegitimate and so 
incapable of inheritance. This bill apparently died in 
the committee room. A resolution in the Senate to recall 
it from the Committee on the Judiciary was tabled on 
March 1, 1909, by a vote of 43 to 21. 


INTERMARRIAGE AND THE FEDERAL CONSTITUTION 


The constitutionality of State statutes and judicial de- 
cisions which have refused to recognize marriages between 
Negroes and white persons celebrated in other States or in 
the District of Columbia have been attacked on two grounds: 
First, that they are in violation of article one, section ten, 
of the Constitution of the United States, which says, in 
part, that no State shall pass any law impairing the obli- 
gation of contracts; and, secondly, that they contravene 
that part of the Fourteenth Amendment which says that 
no State shall make or enforce any law which shall abridge 

95 


INTERMARRIAGE AND MISCEGENATION 


the privileges and immunities of citizens of the United 
States. 

Marriage is declared by the statutes of the States which 
prohibit intermarriage, just as by other States, to be a 
civil contract. If it is a contract and if marriage between 
a white person and a Negro in Massachusetts, for instance, 
is valid, when the parties go to South Carolina to live, how 
can the South Carolina courts declare the marriage a null- 
ity and prosecute the parties for fornication and ‘adultery 
without contravening the Federal Constitution? The only 
answer is: Marriage is a civil contract, but it is something 
more. Almost without exception, the courts have held that 
a State has the absolute control of the marriage status 
within its borders. The early case of State v. Gibson,®° 
coming in 1871 during Reconstruction, sounded a warning 
to the Federal Government’s interfering with the laws of 
marriage. The court said: “ In this State [Indiana] mar- 
riage is treated as a civil contract, but it is more than a 
mere civil contract. It is a public institution established 
by God himself, is recognized in all Christian and civil- 
ized nations, and is essential to the peace, happiness, and 
well-being of society. In fact, society could not exist with- 
out the institution of marriage, for upon it all the social 
and domestic relations are based. The right of all the 
States to regulate and control, to guard, protect, and 
preserve this God-given, civilizing, and Christianizing in- 
stitution is of inestimable importance, and cannot be sur- 
rendered, nor can the States suffer or permit any inter- 
ference therewith. If the Federal Government can de- 
termine who may marry in a State, there is no limit to 
its power. . . .” 

96 


INTERMARRIAGE AND THE FEDERAL CONSTITUTION 


The Supreme Court of Alabama ® in 1872 declared 
that the laws against intermarriage did contravene the 
Civil Rights Bill and the Fourteenth Amendment. But 
this case was expressly overruled by Green v. State,®* in 
which the court, answering both of the objections, said, 
“Marriage is not a mere contract, but a social and do- 
mestic institution upon which are founded all society and 
order, to be regulated and controlled by the sovereign 
power for the good of the State; and the several States of 
the Union in the adoption of the recent Amendments to 
the Constitution of the United States designed to secure 
to citizens rights of a civil or political nature only, and 
did not part with their hitherto unquestioned power of 
regulating, within their own borders, matters of purely 
social and domestic concern.” 

There are Federal cases to support the position of the 
State Courts. But it is of no use to pile up citations of 
decisions further to establish the well-accepted doctrine 
that marriage is more than a civil contract, that it is a do- 
mestic institution, and that a State, by virtue of its police 
power, has absolute control as to who may contract mar- 
riages or live in that relation within its borders.® 


Twenty-six States and Territories prohibit intermar- 
Tiage between the white and other races. They recognize 
as valid such marriages when contracted in a State which 
allows them, unless the parties are trying to evade the laws 
of the State of their domicile or of their intended matri- 
monial residence. The States prescribe a heavier penalty 
for illicit intercourse between white persons and persons 
of another race than for the same offence between two per- 

8 97 


INTERMARRIAGE AND MISCEGENATION 


sons of the same race; they inflict heavy punishments upon 
ministers and other officials who perform a marriage cere- 
mony between a white person and one of another race, 
and upon those who issue licenses for such a marriage; 
and they declare the offspring of such marriages illegiti- 
mate and incapable of inheritance. In each of these posi- 
tions, the courts, Federal as well as State, have upheld the 
twenty-six States and Territories. 

Twenty-four States and Territories do not prohibit in- 
termarriage between the white and other races. It is not 
within the province of this study to consider the actual 
amount of admixture that is going on in these States. 
But inasmuch as Boston has often been cited as the city 
in which the number of marriages between white persons 
and Negroes is very large (estimated by Senator Money, 
of Mississippi, at 2,000 in 1902), the report of the registry 
department of Boston for the years 1900-1907 is here 
added : 


INTERMARRIAGES IN BOSTON 


Colored man White man ‘Total Number 
ite Colored of Mixe 


woman woman Marriages 
BODO Cae trier ier ise tae nts 32 3 30 
LOANS cues Boies wernes 30 1 31 
POOR PA Oe eee ne eye a5) + 29 
ROOST dais pine ee atk Pa 2 eo 
LOD AS trite nies pete 27 1 28 
LOO Di ah on en ia eee yee Hy R une 
LOOG Oro ren aes tet 17 2 1 
LOO ana Nee ainerche ccs 28 4 32 


From this it appears that the number, never appreciably 
large, has been steadily decreasing. 
98 


—— l= 


NOTES 


The following is what Mr. Ray Stannard Baker * has 
to say about the precise fact of intermarriages in the 
Northern States in general: “In the great majority of in- 
termarriages the white women belong to the lower walks 
of life. They are German, Irish, or other foreign women, 
respectable but ignorant. As far as I can see from in- 
vestigating a number of such cases, the home life is as 
happy as that of other people in the same stratum of life. 
But the white woman who marries a Negro is speedily 
declassed: she is ostracised by the white people, and while 
she finds a certain place among the Negroes, she is not 
even readily accepted as a Negro. In short, she is cut 
off from both races. When I was at Xenia, O., I was told 
of a case of a white man who was arrested for living with 
a Negro woman. The magistrate compelled him to marry 
the Negro woman as the worst punishment he could invent. 

“For this reason, although there are no laws in most 
Northern States against mixed marriages, and although the 
Negro population has been increasing, the number of in- 
termarriages is not only not increasing, but in many cities, 
as in Boston, it is decreasing. It is an unpopular institu- 
tion.” 

NOTES 


1 State v. Bell, 1872, 7 Baxter (Tenn.) 9. 

2State v. Ross, 1877, 76 N. C. 242; State v. Kennedy, 
1877, 76 N. C. 251. 

3 Laws of S. C., 1866, extra sess., pp. 393-94. 

Laws of Tex., 1866, p. 181. 

5 Laws of Ark., 1866-67, p. 99. 

6 Art. I, sec. 11. 

7 Art. I, par. 18. 

99 


INTERMARRIAGE AND MISCEGENATION 


§ Scott v. State, 1869, 39 Ga. 321. 
®Sec. 102. 
10 Const., 1885, art. XVI, sec. 24. 
11 Const., 1890, art. XIV, sec. 7. 
12 Const.,; 1875, vart. XLV, see. 8. 
13 Const., 1895, art. ITI, sec. 33. 
14 Const., 1870, art. XI, sec. 14. 
15 Code, 1907, III, sec. 7421. 
16 Revised Stat., 1901, secs. 3092 and 3094. 
17 Kirby’s Digest, 1904, secs. 5174, 5177, and 5183. 
18 Civil Code, 1906, sec. 60. 
18 Revised Stat., 1908, secs. 4163 and 4165. 
20 Revised Code, 1852, as amended in 1893, p. 593. 
21 General Stat., 1906, sees. 2579, 3529, and 3531-32. 
22 Code, 1895, II, secs. 2422-95. 
23 Revised Code, 1908, I, secs. 2616 and 2619. 
24 Annotated Stat., 1908, secs. 2641, 2642, 8360, and 8367. 
25 Statutes, 1909, secs. 4615 and 4619. 
26 Merrick’s Revised Civil Code, 1900, art. 94. 
27 Public Gen. Laws, I, sec. 305, p. 878. 
28 Code, 1906, secs. 1031 and 3244. 
29 Annotated Stat., 1906, II, sec. 2174. 
30 Compiled Stat., 1907, sec. 4275. 
81 Compiled Laws, 1861-1900, secs. 4851-52. 
82 Pell’s Revisal of 1908, I, secs. 2083 and 3369-70. - 
33 General Stat., 1908, secs. 83260 and 3262. 
84 Bellinger and Cotton’s Codes and Stat., I, secs. 1999- 
9001 and II, sec. 5217. 
85 Code, 1902, I, sec. 2664. 
86 Code, 1896, secs. 4186-87. 
87 Sayles’s Civil Stat., I, art. 2959. 
38 Compiled Laws, 1907, sec. 1184. 
39 Pollard’s Code, 1904, sec. 2252. 
100 


NOTES 


40 Code, 1899, p. 972. 

41 Laws of Calif., 1905, p. 554. 

42 Kinney’s Case, 1878, 30 Grat. (Va.) 858, 861. 

48 Code of Criminal Procedure, 1902, sec. 293. 

44 Ha parte Francois, 1879, Fed. Case No. 5,047. 

45 McAlpine v. State, 1897, 117 Ala. 98; 23 So. 1380. 

46 Acts of La., 1908, pp. 105-06. 

47 Laws of N. M., 1866, p. 90. 

48 Acts of R. L, Jan. sess., 1881, p. 108. 

49 Laws of Me., 1883, p. 167. 

5° Pub. Acts of Mich., 1883, p. 16. 

51 Frederick J. Stimson, “ American Statute Law,” I, p. 
668. 

52 Laws of O., 1877, p. 277; 1887, p. 34. 

‘53 Laws of N. C., 1887, p. 494. 

54 Hdward Channing, “ History of the United States,” 
The Macmillan Co., 1905, I, pp. 128-30. 

55 State v. Bell, 1872, 7 Baxter (Tenn.) 9. 

56 Kinney v. Com., 1878, 30 Grat. (Va.) 858. 

57 Hx parte Kinney, 1879, Fed. Case No. 7,825. 

58 State v. Tutty, 1890, 41 Fed. 753. 

5916 Mass. 157 (1819). 

6036 Ind. 389 (1871). 

$1 Burns v. State, 1872, 48 Ala. 195. 

8258 Ala. 190 (1877). 

63 State v. Hairston, 1869, 63 N. C. 451; Lonas v. State, 
1871, 50 Tenn. (3 Heisk) 287; Frasher v. State, 1877, 3 Tex. 
Ap. 263. 

64“ Kollowing the Colour Line,” pp. 172-73. 


CHAPTER VII 
CIVIL RIGHTS OF NEGROES 


THE Thirteenth Amendment to the Federal Constitu- 
tion, prohibiting slavery or involuntary servitude, except 
as a punishment for crime, was proposed to the legislatures 
of the thirty-six States on February 1, 1865, a little over 
two months before the surrender of Lee at Appomatox, and 
was declared to have been ratified by twenty-seven States, 
the requisite three-fourths, by December 18, 1865. ‘The 
latter date marked the Negro’s final freedom from physi- 
cal bondage. His body could no longer be owned as chattel 
property. But there is a vast difference between being able 
to say ““ No man owns my body,” and “I have the same 
rights, privileges, and immunities as other free men.” 
This difference the Thirty-ninth Congress—that of 1865- 
1866—fully realized, and grappled with. 

The first ten Amendments were passed soon after the 
adoption of the Constitution to satisfy the demands of 
those who were jealous of the power of the Federal gov- 
ernment. ‘These, in brief, guaranteed to the citizens of the 
United States (1) freedom of religion, speech, press, as- 
sembly, and of petition for redress of grievances; (2) the 
right to keep and bear arms; (3) the right not to have 
soldiers quartered in one’s house in time of peace without 
one’s consent; (4) freedom from unreasonable searches and 

102 


FEDERAL CIVIL RIGHTS LEGISLATION 


seizures; (5) the right not to be denied life, lberty, or 
property without due process of law; (6) the right to 
trial by jury; (7) the right of the accused to be con- 
fronted by his accuser; (8) the right not to have one’s 
property taken for public use without compensation; and 
(9) the right not to be subjected to cruel or unusual pun- 
ishment, and not to have excessive bail required. These 
were limitations upon the power of Congress, the States 
themselves having guaranteed such rights to their own 
citizens by their bill of rights. After the War, the Fed- 
eral government was fearful that the States, particularly 
those lately in rebellion, would not grant these rights or 
privileges to the freedmen, who, according to the Dred 
Scott decision, were not citizens. All the power that Con- 
gress had over the States, it seems, was to enforce the 
Thirteenth Amendment by appropriation legislation. But 
is proceeded to make the most of the power it had, biding 
its time when another amendment to the Constitution 
would give it more power over the States. 


FEDERAL CIVIL RIGHTS LEGISLATION 


The first step taken by Congress, under the power sup- 
posedly arising out of the Thirteenth Amendment, was an 
attempt to secure to the Negro his so-called “ civil rights.” 
Unfortunately, there seems to be no succinct definition of 
this term. Bouvier’ defines the phrase thus: “A term 
applied to certain rights secured to citizens of the United 
States by the Thirteenth and Fourteenth Amendments to 
the Constitution and by various acts of Congress made in 
pursuance thereof.” This definition, however, helps little, 

103 


CIVIL RIGHTS OF NEGROES 


and one is thrown back upon the Amendments and subsid- 
iary enactments themselves to work out from them what — 
are the civil rights of a citizen and of the Negro in par- 
ticular. | 

During the summer and fall of 1865, between the close 
of the War and the convening of Congress, there had de- 
veloped on the part of the radical element of the Republi- 
can party under Thaddeus Stevens an opposition to Presi- 
dent Johnson’s Reconstruction plans. The first Civil 
Rights Bill passed the Senate on February 2, 1866, passed 
the House a few days later, but on March 27, was returned 
with the veto of the President. It was passed, however, 
over his veto on April 9, 1866, and was thereafter known 
as the Civil Rights Bill? of 1866. The first section reads: 
“* All persons born in the United States and not subject to 
any foreign power, excluding Indians not taxed, are hereby 
declared to be citizens of the United States; and such 
citizens, of every race and color, without regard to any 
previous condition of slavery or involuntary servitude, ex- 
cept as a punishment for crime whereof the party shall have | 
been duly convicted, shall have the same right, in every 
State and Territory in the United States, to make and 
enforce contracts, to sue, be parties, and give evidence, 
to inherit, purchase, lease, sell hold, and convey real and 
personal property, and to full and equal benefits of all laws 
and proceedings for the security of person. and property, 
as is enjoyed by white citizens, and shall be subject to 
like punishments, pains, and penalties, and to none other, 
any law, statute, ordinance, regulation, or custom to the 
contrary notwithstanding.” 

It is evident that the first phrase was intended to con- 

104 


FEDERAL CIVIL RIGHTS LEGISLATION 


travene the Dred Scott decision and to establish the Ne- 
gro’s citizenship. While the Bill was before Congress, the 
great subject of debate was as to just what rights would 
be given thereby to the Negro. Some opposed it because 
they thought it would give him the right of suffrage, the 
right to intermarry with whites, to attend the same schools 
and churches, to sit on juries, and to testify in courts. 
It must be remembered that the “Black Laws” of the 
free States were still in force, and the Congressmen from 
those States were as jealous of Federal interference on the 
subject as those from the Southern States. 

It is not the purpose here to discuss the Civil Rights 
Bill as it was regarded by the people, but rather as it was 
interpreted by the courts. Although it stood scarcely more 
than two years before it was eclipsed and practically super- 
seded by the Fourteenth Amendment, nevertheless it stood 
long enough to be tested by the courts. 

The Negroes, prompted in some instances probably by 
white persons, undertook immediately to see what rights 
were really secured to them by the Bill. In Tennessee and 
Mississippi, in 1866, convictions were had under the ex- 
isting State laws against intermarriage, as there had pre- 
viously been. Appeal to the Federal Supreme Court was 
talked of, but nothing came of it. With a view to testing 
their rights, Negroes in New York demanded sleeper ac- 
commodations on railroads, and went to fashionable res- — 
taurants and demanded the right to sit with the white 
patrons, but in both instances were refused. In Baltimore 
they sought accommodations on street cars, in theatres, 
saloons, etc. with whites, but were met with the same re- 
fusal.° 

105 


CIVIL RIGHTS OF NEGROES 


The constitutionality of the Bill was denied in 1867 by 
the Court of Appeals of Kentucky,* on the ground that it 
invaded the right of the State to regulate its own domestic 
concerns. But its constitutionality was upheld in two 
cases: United States v. Rhodes,* 1866, in the Circuit Court, 
a case involving the right of a Negro to testify, and In re 
Turner,*® in the Circuit Court also, a Maryland case in- 
volving the laws of apprenticeship. 

It appears that none of the cases involving the rights 
of Negroes in public places, which are being considered par- 
ticularly in this chapter, reached the higher courts. But 
Mr. Flack” says: “The instances we have cited, however, 
are apparently sufficient to justify the conclusion that the 
belief prevailed generally—north, east, west and south— 
especially among the Negroes, that the Civil Rights Bill 
gave the colored people the same rights and privileges as 
white men as regards travel, schools, theatres, churches, 
and the ordinary rights which may be legally demanded. 
There also seems to have been a less general belief that it 
also permitted the intermarriage of the races.” 

As interesting as it would be to trace this Bill and the 
subsequent Federal enactments through Congress, it would 
take one too far afield. He must accept the products as 
they came from the crucible of debate, and interpret their 
effect upon the rights of Negroes. 

The Civil Rights Bill of 1866 was practically super- 
seded by the first section of the Fourteenth Amendment, 
ratified by thirty-six States and declared operative July 28, 
1868. This section reads as follows: “ All persons born 
or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and | 

106 


FEDERAL CIVIL RIGHTS LEGISLATION 


of the State wherein they reside. No State shall make or 
enforce any law which shall abridge the privileges or im- 
munities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property, with- 
out due process of law, or deny to any person within its 
jurisdiction the equal protection of the laws.” 

Mr. Flack ® says that the purpose in the adoption of this 
Amendment was (1) to make the Bill of Rights (the first 
eight Amendments) binding upon the States as well as 
upon the Nation; (2) to give validity to the Civil Rights 
Bill of 1866; and (3) to declare who were citizens of the 
United States. As he shows by an analysis of the debates 
in Congress, the constitutionality of the Civil Rights Bill 
of 1866 was doubted by many of its able advocates, and it 
was natural that they should desire to make their tenets 
secure by incorporating them into the Constitution itself. 
It is worth remarking that on May 1, 1870, the Civil Rights 
Bill of 1866 was practically re-enacted.® 

The words “ Negro,” “race,” or “color” do not ap- 
pear in the first section of the Fourteenth Amendment; but 
a study of the speeches before the House and Senate would 
show that the legislators had the Negro primarily in mind, 
and so the court understood. In the Slaughter-House 
Cases *° of 1872, cases not having to do with the Negro in 
the slightest degree, Mr. Justice Miller gave an interpreta- 
tion of the Fourteenth Amendment which has stood as a 
landmark. He said: “...on the most casual examination 
of the language of these Amendments [Thirteenth, Four- 
teenth, and Fifteenth], no one can fail to be impressed 
with the one pervading purpose found in them all, laying 
at the foundation of each, and without which none of them 

107 


CIVIL RIGHTS OF NEGROES 


would have been even suggested ; we mean the freedom of 
the slave race, the security and firm establishment of that 
freedom, and the protection of the newly-made freeman 
and citizen from the oppressions of those who had former- 
ly exercised unlimited dominion over him. It is true that 
only the Fifteenth Amendment, in terms, mentions the 
Negro by speaking of his color and his slavery. But it 
is just as true that each of the other articles were addressed 
to the grievances of that race, and designed to remedy 
them as the Fifteenth. We do not say that no one else 
but the Negro can share in their protection..... But 
we do say ... that in any fair and just construction of 
any section or phrase of these Amendments, it is necessary 
to look to the purpose which we have said was the per- 
vading spirit of them all, the evil which they were designed 
to remedy, and the process of continued addition to the 
Constitution, until that purpose was supposed to be accom- 
plished, as far as constitutional law can accomplish it.” 
Without further citation of authorities, it may be assumed 
that the primary purpose of Congress in drafting the 
Fourteenth Amendment was to secure and protect the 
rights and privileges of Negroes. 

The next Federal legislation on the subject was the 
Civil Rights Bill? of 1875, which declared that all per- 
sons within the jurisdiction of the United States should be 
entitled to the full and equal enjoyment of the accommo- 
dations, advantages, facilities, and privileges of inns, pub- 
lic conveyances on land or water, theatres and other places 
of public amusement, subject only to the conditions es- 
tablished by law and applicable alike to citizens of every 
race and color, regardless of any previous condition of 

108 


FEDERAL CIVIL RIGHTS LEGISLATION 


servitude. The penalty for the violation of this law was 
the forfeiture of five hundred dollars to the person ag- 
grieved and a fine of not less than five hundred dollars nor 
more than one thousand dollars or imprisonment not less 
than three months nor more than one year. The District 
and Circuit Courts of the United States were given exclu- 
sive jurisdiction of offences against this statute. District 
attorneys, marshals, and deputy marshals of the United 
States, and commissioners appointed by the Federal courts 
were authorized to proceed against those violating the pro- 
visions of the act. 

The years between 1865 and 1875 had witnessed changes 
in the attitude of Congress toward the civil rights of 
Negroes. The Bill of 1866 was general in its terms, yet 
Congress did not feel secure till the Fourteenth Amend- 
ment had been passed to give validity, in a sense, to what 
had already been done. Now in 1875 Congress passed a 
bill which far surpassed in scope anything that had there- 
tofore been undertaken. It is surprising that the test case 
of its constitutionality did not reach the court of last re- 
sort before 1883. During the year of its passage, 1875, 
doubt was thrown upon its validity by Judge Dick in 
charging the grand jury of the Federal Circuit Court of 
North Carolina,’* who said, in part: “ Every man has a 
natural and inherent right of selecting his own associates, 
and this natural right cannot be properly regulated by 
legislative action, but must always be under the control of 
the individual taste or inclination.” The same year, Judge 
Emmons, of the Circuit Court in Tennessee,'* ruled that 
the Fourteenth Amendment applied to State and not in- 
dividual action, and that the Federal government could 

109 


CIVIL RIGHTS OF NEGROES 


not require individual inn-keepers, theatre managers, etc.,. 
to entertain Negroes. 

The constitutionality of the Civil Rights Bill of 1875, 
however, was finally settled in 1883. That year five cases “ 
reached the Supreme Court, all of which had to do with. 
the civil rights of Negroes. ‘Two of them concerned the 
rights of colored persons in inns and hotels; two, their 
rights in theatres; and one, in railroad cars. Mr. Justice 
Bradley, delivering the opinion of the court, took the 
ground that the first and second sections of the Civil 
Rights Bill were unconstitutional for these reasons: (1) 
They are not authorized by the Thirteenth Amendment, 
abolishing and prohibiting slavery, because the separation 
of the races in public places is not a badge of servitude. 
“Tt would be running the slavery argument into the 
ground,” he said, “ to make it apply to every act of dis- 
crimination which a person may see fit to make as to the 
guests he will entertain, or as to the people he will take 
into his coach, or cab, or car, or admit to his concert or 
theatre, or deal with in other matters of intercourse or 
business.” (2) The Civil Rights Bill is not authorized by 
the Fourteenth Amendment, because that refers to action 
by the State, while the Bill refers to individual discrim- 
ination. It is State action of a particular kind that is 
prohibited. “Individual invasion of individual rights,” 
he argued, “is not the subject matter of the amendment. 
... It nullifies and makes void all State legislation, 
and State action of every kind, which impairs the privileges 
and immunities of citizens of the United States... . It 
does not invest Congress with power to legislate upon sub- 
jects which are within the domain of State legislation; but 

110 


' STATE LEGISLATION BETWEEN 1865 AND 1883 


to provide modes of relief against State legislation or 
State action. . . . It does not authorize Congress to cre- 
ate a code of municipal laws for the regulation of private 
rights, but to provide modes of redress against the opera- 
tion of State laws, and the action of State officers, execu- 
tive or judicial, when these are subversive of the funda- 
mental rights specified in the Amendment . . . until some 
State law has been passed, or some State action through 
its officers or agents has been taken, adverse to the rights 
of citizens sought to be protected by the Fourteenth 
Amendment, no legislation of the United States under 
said Amendment, nor any proceeding under such legisla- 

tion, can be called into activity; for the prohibitions of 
the Amendment are against State laws and acts done under 
State authority.” 

The effect of this decision is that the Federal govern- 
ment cannot prevent the curtailment of the civil rights 
of Negroes by individuals unless such individuals are acting 
under sanction of State statutes, and in that case, the Fed- 
eral court can only declare that the State statute is un- 
constitutional. 


STATE LEGISLATION BETWEEN 1865 AND 1883 


The Civil Rights Bill of 1875 was the last effort of 
Congress to guarantee to Negroes their civil rights. It 
is well now to turn back in point of time, and trace the 
action of the State legislatures on the subject. It has been 
deemed advisable to let the year 1883 be the dividing point 
in the history of the latter legislation. Before that time 
the States were moving in conjunction with the Nation; 

111 


CIVIL RIGHTS OF NEGROES 


after, the impotence of the Nation having been declared 
by its Supreme Court, the burden of defining and secur- 
ing civil rights to Negroes devolved upon the States. 
Moreover, it 1s well to treat the Southern States and the 
States outside the South separately, because of the abnor- 
mal conditions in the former occasioned by Reconstruction. 


In States Outside of South 


Between 1865 and 1883 there was comparatively little 
legislation in the Northern, Eastern, and Western States 
as to civil rights. This was naturally so because these 
States were waiting to see what the Federal government 
meant to do. A brief examination of what little legisla- 
tion there was will be made. 

On May 16, 1865, Massachusetts *° declared that there 
should be no distinction, discrimination, or restriction on 
account of color or race in any licensed inn, public place 
of amusement, public conveyance, or public meeting, and 
imposed a fine of fifty dollars for the violation of this law. 
The next year it included theatres ** within the prohibition, 
but weakened the force of the statute by saying that there 
should be no exclusion or restriction “except for good 
cause.” 

The attitude of Delaware *” toward civil rights is prob- 
ably the most interesting of any of the Northern States. 
On April 11, 1873, its legislature passed the following 
“joint resolution in opposition to making Negroes the 
equals of white men, politically or socially ”: 

“That the members of this General Assembly, for the 
people they represent, and for themselves, jointly and in- 
dividually, do hereby declare uncompromising opposition: 

112 


STATE LEGISLATION BETWEEN 1865 AND 1883 


to a proposed act of Congress, introduced by Hon. Charles 
Sumner at the last session, and now on file in the Senate 
of the United States, known as the ‘ Supplemental Civil 
Rights Bill,’ and all other measures intended or calculated 
to equalize or amalgamate the Negro race with the white 
trace, politically or socially, and especially do they proclaim 
unceasing opposition to making Negroes eligible to public 
offices, to sit on juries, and to their admission into public 
schools where white children attend, and to the admission 
on terms of equality with white people in the churches, 
public conveyances, places of amusement, or hotels, and to 
any measure designed or having the effect to promote the 
equality of the Negro with the white man in any of the 
relations of life, or which may possibly conduce to such 
result. 

“That our Senators in Congress be instructed, and 
our Representatives requested to vote against and use all 
honorable means to defeat the passage by Congress of the 
bill referred to in the foregoing resolution, known as the 
‘Supplemental Civil Rights Bill,’ and all other measures 
of a kindred nature, and any and every attempt to make 
the Negro the peer of the white man.” 

Upon the heels of this resolution, in 1875, Delaware 7* 
enacted a statute on March 15, 1875, which provided that 
no keeper of an inn, tavern, hotel, or restaurant, or other 
place of public entertainment or refreshment of travelers, 
guests, or customers, should be obliged by law to furnish | 
entertainment or refreshment to persons whose reception 
or entertainment by him would be offensive to the major 
part of his customers, or would injure his business. ‘The 
_ term “customers” was taken to include all who sought 
9 113 


CIVIL RIGHTS OF NEGROES 


entertainment or refreshment. The proprietor of a theatre 
or other public place of amusement was not obliged to 
receive into his show, or admit into the place where he was 
pursuing his occupation, any person whose presence there 
would be offensive to the major part of his spectators or 
patrons, and thereby injure his business. Any carrier of 
passengers might make such arrangements in his business 
as would, if necessary, assign a particular place in his cars, 
carriages, or boats, to such of his customers as he might 
choose to place there, and whose presence elsewhere would 
be offensive to the major part of the traveling public, 
where his business was conducted ; but the accommodations 
must be equal if the same price for carriage was required 
of all. This is still the law in Delaware. Taken in con- 
nection with the joint resolution above, there is little doubt 
that the legislature intended to make possible the drawing 
of a color line, though it did not expressly say so. It is 
noteworthy that, during the stormy years of Reconstruc- 
tion, some case testing its constitutionality did not arise. 
Only one other State has had a statute anything hke the 
Delaware law, and that is Tennessee, which statute and, 
with it, apparently the only case involving the constitution- 
ality of the law that has reached the courts will be dis- 
cussed later. 

A Kansas 7° statute of April 25, 1874, which is still law, 
provided that there should be no distinction on account of 
race, color, or previous condition of servitude in any State 
university, college, or other school of public instruction, 
or in any licensed inn, hotel, boarding house, or any place 
of public entertainment or amusement, or any steamboat, 
railroad, stage coach, omnibus, street car, or any other 

114 


STATE LEGISLATION BETWEEN 1865 AND 1883 


means of public carriage for persons or freight, under pen- 
alty of a fine of from ten to one thousand dollars. 

New York,”® on April 9, 1874, passed a Civil Rights 
Bill which prohibited race distinctions in inns, public con- 
veyances on land and water, theatres, other public places 
of amusements, common schools, public institutions of 
learning, and cemeteries. It further declared that the dis- 
crimination against a citizen on account of color, by the 
use of the word “ white,” or any other term, in any law, 
statute, ordinance, or regulation, should be repealed. In 
1881, it specifically mentioned hotels, inns, taverns, restau- 
rants, public conveyances, theatres, and other places of. 
public resort or amusement.?? 


In South 


One would naturally expect that most of the legislation 
in the South guaranteeing civil rights to Negroes would 
have come during the period that their governments were 
in the hands of the Reconstructionists, and such is the case. 

In 1866 a Florida *? statute made it a misdemeanor for 
a person of color to intrude himself into any religious or 
other public assembly of white persons, or into a railroad 
ear or other public vehicle set apart for the exclusive ac- 
commodation of white people, or for a white person so 
to intrude upon the accommodations of colored persons. 
By 1873, however, the political revolution had come, and a 
statute *° of that year forbade discrimination on account of 
race, color, or previous condition of servitude, in the full 
and equal enjoyment of the accommodations, etc., of inns, 
public conveyances on land and water, licensed theatres, 
other places of public amusement, common schools, public 

115 


CIVIL RIGHTS OF NEGROES 


institutions of learning, cemeteries, and benevolent associa- 
tions supported by general taxation. This prohibition did 
not apply to private schools or cemeteries established ex- 
clusively for white or colored persons. It added, as did 
the law of New York, that there should be no discrimina- 
tion in any laws by using the word “ white.” 

A statute of Louisiana ** in 1869 prohibited any dis- 
crimination on account of race or color by common car- 
riers, innkeepers, hotel keepers, or keepers of public resorts. 
The license of such places had to contain the stipulation 
that they must be open to all without distinction or dis- 
crimination on account of color. The penalty was for- 
feiture of the license and a suit for damages by the party 
aggrieved. This statute? was strengthened in 1873 by 
the further provision that all persons, without regard to 
race or color, must have “ equal and impartial accommoda- 
> on public conveyances, in inns and other places of 
public resort. It was the duty of the attorney-general to 
bring suit in the name of the State to take away the license 
of anyone violating the law. The statute imposed a fine 
upon common carriers running from other States into Lou- 
isiana who made any discrimination against citizens of the 
latter on account of race or color. 

Arkansas,** in 1873, required the same accommodations 
to be furnished to all by common carriers, keepers of pub- 
lic houses of entertainment, inns, hotels, restaurants, 


tions ” 


saloons, groceries, dramshops, or other places where liquor 
was sold, public schools, and benevolent institutions sup- 
ported in whole or partly by general taxation. 
The law of Tennessee 2” of 1875 is in a very different 
tone, it being very much like, as has been said before, that 
116 


STATE LEGISLATION BETWEEN 1865 AND 1883 


of Delaware. That statute reads: “The rule of the com- 
mon law giving a right of action to any person excluded 
from any hotel, or public means of transportation, or place 
of amusement, is hereby abrogated ; and hereafter no keeper 
of any hotel, or public house, or carrier of passengers for 
hire, or conductors, drivers, or employees of such carrier 
or keeper, shall be bound, or under any obligation to enter- 
tain, carry, or admit any person, whom he shall for any 
reason whatever, choose not to entertain, carry, or admit, 
to his house, hotel, carriage, or means of transportation 
or place of amusement; nor shall any right exist in favor 
of any such person so refused admission, but the right of 
such keepers of hotels and public houses, carriers of pas- 
sengers, and keepers of places of amusement and their 
employees to control the access and admission or exclusion 
of persons to or from their public houses, means of trans- 
portation, and places of amusement, shall be as perfect and 
complete as that of any person over his private house, 
carriage, or private theatre, or place of amusement for 
his family.” This Tennessee law is even more sweeping 
than that of Delaware. In the latter, common carriers 
may provide separate accommodations for persons that 
would be disagreeable to the major portion of the traveling 
public; in the former, the common carrier might exclude 
such persons altogether. According to the Tennessee stat- 
ute, every railroad company in the State had a right to 
refuse absolutely to carry Negroes on its cars. Of course, 
this has been changed by its “Jim Crow” laws. The case 
of State v. Lasater,?* dealing with the second section of 
the Tennessee statute, has the following to say about the 
whole enactment: “This is an extraordinary statute. It 
iy 


CIVIL RIGHTS OF NEGROES 


is generally understood to have been passed to avoid the 
supposed effects of an act of Congress on the same sub- 
ject, known as the Civil Rights Bill.” 

The constitutionality of the Tennessee and Delaware 
statutes has not been tested, as far as is known. ‘There- 
fore, in the absence of authority, an opinion on the matter 
is of little value, but the following suggestion is ventured: 
Originally, hotels and inns were no more public places 
than a man’s dwelling, and one could choose his patrons 
just as he could choose the guests he would entertain, 
and might exclude anyone without giving his reasons for it, 
as a merchant might refuse to sell goods to anyone he 
chose. For historical reasons, which need not be discussed 
here, the courts held that an inn-keeper should not be al- 
lowed to refuse an applicant for entertainment unless he 
had. some valid reason for it. The common law thereafter 
considered hotels, etc., public places. It has been seen 
that the Civil Rights Cases held that the Federal govern- 
ment cannot prohibit a hotel-keeper from refusing to re- 
ceive an applicant, but that the regulation of such domestic 
relations is within the exclusive control of the State. If 
the State sees fit to pass a statute abrogating the common 
law, as Tennessee and Delaware did, and making hotels, 
etc., private places, as they were originally, there seems 
to be no valid constitutional objection. The reasoning 
that applies to hotels will apply to other places now consid- 
ered public, possibly even to public conveyances. 

The following resolution of the legislature of North 
Carolina *® of 1877 is worth quoting in full. It is especial- 
ly significant because it was passed after the Reconstruc- 
tion régime was over, and the State government had passed | 

118 


STATE LEGISLATION BETWEEN 1865 AND 1883 


back into hands of the Democratic party, with Zebulon B. 
Vance as Governor. 

“ Whereas, In the providence of God, the colored people 
have been set free, and this is their country and their 
home, as well as that of the white people, and there should 
be nothing to prevent the two races from dwelling together 
in the land in harmony and peace; 

“ Whereas, We recognize the duty of the stronger race 
to uphold the weaker, and that upon it rests the responsi- 
bility of an honest and faithful endeavor to raise the weaker 
race to the level of intelligent citizenship ; and 

“Whereas, The colored people have been erroneously 
taught that legislation under Democratic auspices would 
be inimical to their rights and interests, thereby causing a 
number of them to entertain honest fears in the premises, 

“The General Assembly of North Carolina do resolve, 
That, while we regard with repugnance the absurd at- 
tempts, by means of ‘ Civil Rights’. Bills, to eradicate cer- 
tain race distinctions, implanted by nature and sustained 
by the habits of forty centuries ; and while we are sure that 
good government demands for both races alike that the 
great representation and executive offices of the country 
should be administered by men of the highest intelligence 
and best experience in public affairs, we do, nevertheless, 
heartily accord alike to every citizen, without distinction 
of race or color, equality before the law. 

“ Resolved, That we recognize the full purport and in- 
tent of that amendment to the Constitution of the United 
States which confers the right of suffrage and citizenship 
upon the people of color, and that part of the Constitution 
of North Carolina conferring educational privileges upon 

119 


CIVIL RIGHTS OF NEGROES 


both races: that we are disposed and determined to carry 
out in good faith these as all other constitutional pro- 
visions.” 


STATE LEGISLATION AFTER 1883 
In South 


The civil rights legislation in the South after 1883 may 
be shortly disposed of, for an examination of the session 
laws of the Southern States since that time reveals only 
one statute that can at all properly be called a Civil Rights 
Bill. That was a statute of Tennessee *° of March 25, 
1885, providing against discrimination in theatres, shows, 
parks, places of public resort for observation of scenery 
or amusement of any kind whatever, where fee or toll is 
charged. But it adds this significant section: “ That noth- 
ing herein contained shall be construed as interfering with 
the existing rights to provide separate accommodations and 
seats for colored and white persons at such places.” It 
may be taken for granted that the Civil Rights Bills passed 
in the South by the Reconstruction administrations became 
inoperative, if they were not actually repealed, as soon as 
the government reverted to the hands of the resident white 
people. Of course, all the Southern legislation as to sepa- 
rate schools and separate accommodations in public con- 
veyances relates to the civil rights of Negroes, and most 
of this has come since 1883, but the discussion of these 
two important subjects is postponed to later chapters. 


In States Outside of South 


The Federal Civil Rights Bill, as has been seen, was 
declared unconstitutional in 1883, and the national gov- | 
120 


STATE LEGISLATION AFTER 1883 


ernment was thereby declared impotent to secure for Ne- 
groes equality of accommodations in public places. Thus 
the burden, as has been said before, was thrown upon the 
States. Many of the States outside the South responded 
by adopting bills which practically copied the Civil Rights 
Bill of 1875. The following is a list of the States that 
have such Civil Rights Bills with the dates of their adop- 
tion and amendments: Connecticut,*t 1884 and 1905; 
Towa,®*? 1884 and 1892; New Jersey,** 1884; Ohio,** 1884 
and 1894; Colorado,®®> 1885 and 1895; Illinois,?® 1885; 
Indiana," 1885; Massachusetts,** 1885, 1893, and 1895; 
Michigan,*® 1885; Minnesota,*® 1885, 1897, and 1899; Ne- 
braska,** 1885 and 1893; Rhode Island,*? 1885; New 
York,*? 1893 and 1895; Pennsylvania,** 1887; Washing- 
ton,*® 1890; Wisconsin,*® 1895; and California,*”? 1897. 
The Kansas*® bill has already been considered. 

A clearer idea of what the various State statutes mean 
and how they differ from the Civil Rights Bill of 1875 
may be got from the accompanying table. The list contains 
the names of places where all citizens, without regard to 
race, color, or previous condition of servitude are guaran- 
teed equality of accommodation. It will be noticed that 
none of the Southern States have Civil Rights Bills and, 
therefore, depend upon the courts to determine the rights 
of citizens in public places, and in addition the following 
States have no such statute: Delaware, Idaho, Maine, 
Maryland, Missouri, Montana, Nevada, New Hampshire, 
North Dakota, Oregon, South Dakota, Utah, Vermont, 
West Virginia, and Wyoming. 


ane 


121 


ANALYSIS OF THE STATE CIVIL RIGHTS BILLS 


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X Indicates States in which equal accommodations are guaranteed to all without regard to race. 


PENALTY FOR VIOLATING THE LAW 


1. Canirornia: Fine not less than $50. 

2. CoLorapo: Forfeiture between $50 and $500; mis- 
demeanor, fine between $10 and $300, or imprisonment not 
over one year. | 

3. ConNECTICUT: Double damages to person injured. 

4, Inuinois: Forfeiture between $25 and $500; misdemeanor, 
fine not over $500, or imprisonment not over one year. 

5. Inprana: Forfeiture not over $100; misdemeanor, fine not 
over $100, or imprisonment not over thirty days, or both. 

6. Iowa: Misdemeanor. 

7. Kansas: Misdemeanor, fine between $10 and $1,000, and 
suit for damages. 

8. MassacHusEeTts: Forfeiture between $25 and $300; mis- 
demeanor, fine not over $300, or imprisonment not over one 
year, or both. 

9. Micuigan: Misdemeanor, fine not over $100, or imprison- 
ment thirty days, or both. 

10. Minnesota: Forfeiture of $500 to aggrieved party; 
gross misdemeanor. 

11. NEBRASKA: Misdemeanor, fine between $25 and $100 
and costs. 

12. New JrErsey: Forfeiture of $500 to aggrieved party and 
costs; misdemeanor, fine between $500 and $1,000, imprison- 
ment between thirty days and one year. 

13. New York: Forfeiture between $100 and $500 to ag- 
grieved party; misdemeanor, fine between $100 and $500, im- 
prisonment between thirty days and ninety days, or both. 

14. Onto: Forfeiture between $50 and $500 to aggrieved 
party ; misdemeanor, fine between $50 and $500, imprisonment 
between thirty days and ninety days. 

15. Pennsyivanta: Misdemeanor, fine between $50 and $100. 

16. RuopE Isutanp: Fine not over $100. 

17. Wasuineton: Misdemeanor, fine between $50 and $300, 
imprisonment between thirty days and six months. 

18. Wisconsin: Not less than $5 to aggrieved party; fine 
not over $100, or imprisonment not over six months. 


123 


CIVIL RIGHTS OF NEGROES 


The wording of all the statutes is essentially the same. 
Each provides that all citizens within the jurisdiction of 
the State, without regard to race, color, or previous condi- 
tion of servitude, are entitled to the full and equal accom- 
modations, advantages, facilities, and privileges of the 
various places mentioned. ‘The offending party may be 
either indicted and fined or imprisoned, or he may be 
sued by the aggrieved party. In some States, an action 
by the State is a bar to an action by the party and vice 
versa. One who aids or abets in a discrimination against a 
person on account of race, color, or previous condition of 
servitude is punished to the same extent as the one actually 
committing the act. 

Heretofore only legislative enactments, State and Fed- 
eral, as to the civil rights of Negroes have been considered. 
It is well now to turn to the courts to see how the laws 
have been interpreted as regards various public places. 


HOTELS 


Only six States expressly forbid race distinctions in 
hotels. But it may be assumed that the sixteen States 
which mention inns mean to include hotels. 

In 1876 a Negro minister applied for a room at a Phila- 
delphia hotel and was refused accommodation, though one 
of the guests offered to share his room with him. At that 
time there was no law in Pennsylvania requiring hotel- 
keepers to receive colored persons; but the Federal court *® 
held that the clerk might be lable under the Federal Civil 
Rights Bill of 1875. 

In 1898 one Russ applied for a license to open a hotel 

124 


HOTELS 


in Pennsylvania. In granting it, the court *° took the occa- 
sion to express its view on race distinctions in the follow- 
ing words: “ A sober, respectable, and well-behaved colored 
man or woman is entitled under the law of Pennsylvania 
to be received in any house of entertainment and be treated 
in the same manner as any other guest. It is time that 
race discrimination ceased in this State. . . . No one ob- 
jects any longer to his [the Negro’s] presence in a public 
conveyance or place of entertainment; thus far the preju- 
dice of race has been overcome; it is quite certain that 
the objection to his presence in a hotel or restaurant will 
also pass away as soon as his right under the law to be 
there is recognized in fact as it now is by the letter of the 
statute. .. . It would be vain to deny that some race 
prejudice still exists among us, but the law does not coun- 
tenance it, and good citizens should strive to rise above it. 
We trust the effort will be made and that toleration and 
moderation will mark the conduct of both races.” 

In 1896 the members of the Indiana University football 
team went to the Nutt House in Crawfordsville, Indiana, 
for accommodation. One of the members of the team was 
a Negro. The clerk refused to take the Negro in with the 
rest of the guests, but offered to let him eat at the “ ordi- 
nary.” The Negro, being a minor, brought suit through 
his next friend, and the Indiana ** court held that the Civil 
Rights Bill of the State could not be satisfied by separate 
accommodations. 

There is no case of race discrimination in the hotels of 
Massachusetts that has reached the higher courts, but in 
April, 1896, the following resolution ** was passed by the 
General Court of the State: 

125 


CIVIL RIGHTS OF NEGROES 


“ Whereas, On the twenty-ninth day of January, eigh- 
teen ninety-six, the Reverend Benjamin W. Arnett, D.D., 
of Wilberforce, Ohio, senior bishop of the African Meth- 
odist Episcopal Church, president of the board of trustees 
of Wilberforce University, and member of many learned 
societies, was refused entertainment at certain reputable 
hotels in the city of Boston, because he was a colored man, 
in spite of the statute laws against discrimination on ac- 
count of color; therefore, 

“ Resolved, That the senate and house of representa- 
tives of the Commonwealth of Massachusetts, in general 
court assembled, successors of those bodies which repeatedly 
elected Charles Sumner to the Senate of the United States, 
and for four years received messages from John A. An- 
drew, hereby express their severest reprobation of such 
discrimination and their firm conviction of the truth of the 
clause of the Declaration of Independence wherein all men 
are declared to be created equal; and it is further 

“ Resolved, That still more to be reprobated is the sen- 
timent of any part of the public against any class of our 
fellow citizens whereby such discrimination is rendered 
possible, and that a vigorous campaign for statute rights 
by the persons most aggrieved will meet the hearty ap- 
proval and codperation of the two branches of the General 
Court.” This is very significant as showing the actual 
attitude of the hotels of Boston toward receiving Negroes. 
Whether the “ vigorous campaign ” was conducted one can- 
not tell; certainly no case appears to have reached the 
courts. And there is in Boston at present a Negro hotel. 

The manager of the Lucerne Hotel in New York City 
in 1905, refused to lease a suite to a woman because she 

126 


RESTAURANTS 


was a Jewess. It was a family hotel, containing small 
suites like those found in an ordinary apartment house, 
rented upon annual leases, transients not being solicited. 
The New York court ** held that it was not a hotel in the 
sense that the manager must receive all applicants with- 
out regard to race or color. Of course, this case did not 
concern the Negro, but the same principle is involved. 


RESTAURANTS 


Race discrimination in restaurants is prohibited by thir- 
teen States; in taverns, by one; in eating-houses, by eleven ; 
in boarding-houses, by one; in cafés, by one; in chop- 
houses, by one; and at-lunch-counters, by one. These will 
be considered under the general head of restaurants. 

In 1881 a Negro was refused accommodation in a res- 
taurant in New York. At that time the laws of the State 
prohibited discrimination in inns. The restaurant-keeper 
argued as a defence in the suit that followed that the res- 
taurant was not included in the term “inns.” The court * 
held that the legislature meant by “inn” a place that fur- 
nished both lodging and food to guests, that “ restaurant ” 
had no fixed legal meaning, and that the declaration was 
sufficient if it said “inn” and then explained it by calling 
it a restaurant. 

A Negro went to a restaurant in Detroit in 1887 an 
asked for accommodation. The clerk told him that he 
could not be served on the restaurant side, but that he 
would be served if he went over on the saloon side. The 
colored man complained to the proprietor and was told 
that it was the rule of the house not to serve Negroes in 

127 


CIVIL RIGHTS OF: NEGROES 


the restaurant room. The statute of Michigan required 
full and equal accommodation in restaurants. The court * 
held that the statute would not be satisfied if the Negro 
were given as good accommodations but in a different 
room, saying: “In Michigan there must be and is an ab- 
solute, unconditional equality of white and colored men 
before the law. . . . Whatever right a white man has in a 
public place, the black man has also.” 

In 1897 a colored man went into a restaurant in Mil- 
waukee, Wisconsin. After sitting at the table forty min- 
utes without having his order taken, he complained, and 
was told that he was not served because he was colored. 
He left, and later brought suit. At the trial, it appeared 
that the discrimination was not with the sanction of the 
proprietor, that he had told the waiter to serve Negroes, 
that the waiter had refused to do so and was discharged 
therefor. Nevertheless, the court °* held that the proprie- 
tor was liable for the act of his servant, and gave com- 
pensatory damages to the Negro. 

The next year, a restaurant keeper refused to accom- 
modate a Negro in Lucas County, Ohio, and the court *” 
allowed the Negro to recover the penalty prescribed by the 
law. ‘The case was decided on a question of evidence. 

In 1905 a Negro was serving on the jury in a civil case 
in Iowa. The bailiff had arranged with a boarding-house 
to serve meals. When the Negro, along with the other 
jurors, went for his meals, the boarding-house keeper re- 
fused to allow him to sit at the same table with the others. 
It was not questioned that this was in violation of the 
Civil Rights Bill of the State if the boarding-house was 
an “eating-house” within the terms of the statute. The — 

128 


BARBER-SHOPS 


court °* charged the jury that such an eating-house as 
would come within the statute must be a place where meals 
are served to anyone applying at the same prices charged 
to all, but that, if meals are served only in pursuance of a 
previous arrangement for particular individuals, rather 
than anyone who may apply, it is a private boarding-house 
and not within the statute. 


BARBER-SHOPS 


‘Thirteen States provide that barbers must serve all 
persons without regard to race or color. 

In 1889 a barber in Lincoln, Nebraska, refused to shave 
a Negro because he was “colored.” The Civil Rights Bill 
of that State mentions barbers. The court ®® held: “A 
barber, by opening a shop and putting out his sign, thereby 
invites every orderly and well-behaved person who may de- 
sire his services to enter his shop during business hours. 
The statute will not permit him to say to one, you were 
a slave or the son of a slave, therefore I will not shave 
you. Such prejudices are unworthy of our better manhood, 
and are clearly prohibited by the statute.” Barber-shops 
were included within the provisions of the Massachusetts 
Civil Rights Bill in 1893, but, as a matter of fact, Negroes 
are not even now given the same accommodations as whites 
in barber-shops in Massachusetts. 

The statute of Connecticut requires equality of service 
in “places of public accommodation.” <A barber refused 
to serve one Faulkner because he was a Negro, and the lat- 
ter brought suit on the ground that a barber-shop is a place 
of public accommodation and, hence, within the Civil 

10 129 


CIVIL RIGHTS OF NEGROES 


Rights Bill of the State. The court °° held that the barber- 
shop is not, in its nature, different from the places of 
business run for private gain, and that the common law 
has never recognized it as possessing the quality of a place 
of public accommodation, as a hotel, public conveyance, 
etc. 

It may be added here that most of the cases have in- 
volved the point as to what are places of public accommo- 
dation or amusement or resort. If the place is mentioned 
in the Civil Rights Bill, it is, of course, within the pro- 
hibition, and it is a violation of the statute even to require 
separate accommodations, although equal in every other 
respect. But a vast deal of litigation has arisen out of 
instances of Negroes being denied accommodation in places 
considered public in their nature but which are not men- 
tioned in the Civil Rights Bill of the State wherein the case 
arises. 


BOOTBLACK STANDS 


In the year 1901, Basso, a bootblack in the basement of 
one of the business houses of Rochester, New York, refused 
to serve Burks because the latter was a Negro. The law 
of New York, as has been seen, requires full and equal 
accommodations in hotels and “ other places of public ac- 
commodation.” The question, therefore, was: Is a boot- 
black stand a place of “ public accommodation”? 'The mu- 
nicipal court of Rochester, in which Burks brought suit, 
gave judgment for him, thereby answering the question 
in the affirmative. The county court reversed the decision. 
The appellate division reversed the county court and sus- 
tained the municipal. The court of appeals ®t reversed the | 

130 


BILLIARD-ROOMS 


appellate division thereby sustaining the county court, say- 
ing: “A bootblacking stand may be said to be a place 
of public accommodation, like the store of a dry goods mer- 
chant, a grocer, or the proverbial ‘butcher, baker, and 
candlestick maker’; but that is very far from placing it 
in the same category with the places specifically named in 
the statute. Inns, hotels, and public conveyances are places 
of public accommodation in the broadest sense, because 
they have always been denominated as such under the com- 
mon law. Bath-houses and barber-shops are not to be re- 
garded as included within the statute under the general 
phrase, ‘and all other places of public accommodation.’ 
There is no more relation between a bootblacking stand and 
a public conveyance than there is between a theatre or 
music-hall and a bath-house or barber-shop. There is, it 
is true, a superficial resemblance between the occupation of 
the barber and that of the bootblack, in the sense that both 
minister to the personal comfort and convenience of others ; 
but the same argument could be extended far beyond the 
limits necessary to demonstrate that not ‘all other places 
of public accommodation’ are included by relation within 
the category of the things specifically enumerated in the 
statute.” 


BILLIARD-ROOMS 


In Massachusetts in 1866, a certain Negro was refused, 
because of his race or color, the use of a billiard-room. At 
that time a statute of the Commonwealth required equal 
accommodation in public places of amusement. The Su- 
preme Court * of Massachusetts, in which the Negro’s case 
was finally heard, held that there was no proof that the 

131 


CIVIL RIGHTS OF NEGROES 


room was licensed, and added: “ It cannot be supposed that 
it was the intent of the legislature to prescribe the manner 
in which persons should use their own premises or permit 
others to use them, if they did not carry on therein an 
occupation or business, or suffer other persons to appropri- 
ate them to a purpose, which required a license in order to 
render such an appropriation lawful.” 


SALOONS 


Only two States, Minnesota and Wisconsin, mention 
saloons in their Civil Rights Bills. And in Minnesota, they 
were not added till 1899, as a result of the following case: 
A Negro was denied accommodation in a saloon. At that 
time, the statute required equal accommodations in inns 
and “places of public resort, refreshment, accommoda- 
tion, or entertainment.” The court ®* of that State, in 
passing on the case, held that a saloon is not among the 
other “places of public refreshment.” 'The court suggests 
that “or other” means “other such like” and includes 
only places of the same nature as those already mentioned 
specifically in the statute. About the Negro, the court 
said: “It is a well-known fact that, owing to an unrea- 
sonable race prejudice which still exists to some extent, 
the promiscuous entertainment of persons of different 
races in places where intoxicating drink are sold not in- 
frequently result in personal conflicts, especially when the 
passions of men are inflamed by liquor. Hence the legis- 
lature might have omitted saloons for that reason.” The 
next year the legislature answered otherwise by adding 
saloons to the Civil Rights Bill. 

132 


= 
me 


ee ar ae 


™ 
cg Sle een 


SODA FOUNTAINS 


In 1899 a bar-keeper in Ohio charged a Negro thirty 
cents for a cocktail, the regular price to white customers 
being only fifteen cents. The Civil Rights Bill of Ohio 
did not mention saloons, but said “ other places of public 
accommodation and amusement.” ‘The court ®* held that 
saloons were not included, adding, in the same spirit as 
the Minnesota court: “.. . nor should we interpret this 
statute as encouraging a tariff which the clearly defined 
policy of the State discourages.” 

A statute of Louisiana * of 1908 requires separate sa- 
loons for white and colored persons. The Louisiana court,** 
in July, 1909, held that the sale of liquor to white and 
colored persons must not be conducted in the same building, 
and that the statute is not obeyed by providing separate 
bars in the same building. The saloon keeper had at- 
tempted to avoid paying taxes on two saloons by operating 
two bars in the same building. 

In Atlanta,*’ before State prohibition began, there were 
separate saloons for the white and colored people. An or- 
dinance of Nashville,** Tennessee, which went into effect 
July 7, 190%, required the segregation of the races in sa- 
loons. 


SODA FOUNTAINS 


The keeper of a soda fountain in Illinois in 1896 re- 
fused to sell cold drinks to a Negro. At that time the 
law required equal accommodation in inns and “all 
other places of accommodation and amusement.” The 
court °° of that State held that a soda fountain is not such 
a place of accommodation or amusement. “ Such a place,” 
the court argued, “can be considered a place of accommo- 

133 


CIVIL RIGHTS OF NEGROES 


dation or amusement to no greater extent than a places 
where dry goods or clothing, boots and shoes, hats and 
caps, or groceries, are dispensed. The personal liberty of 
an individual in his business transactions, and his freedom 
from restrictions, is a question of utmost moment, and 
no construction can be adopted by which an individual 
right of action will be included as controlled within a 
legislative enactment, unless clearly expressed in such en- 
actment and certainly included within the constitutional 
limitation on the power of the legislature.” 


THEATRES 


The question of the rights of Negroes in theatres has 
given rise to a number of judicial decisions. Fifteen States 
provide by statute that there shall be no race distinction 
in theatres. In 1873, the laws of Mississippi, under the 
Reconstruction government, declared that all persons, with- 
out distinction as to race, color, or previous condition of 
servitude, should have equal and impartial enjoyment of 
theatres. One Donnell, held in custody for refusing to 
pay a fine for violating this law by refusing to sell thea- 
tre tickets to two Negroes, petitioned for a writ of habeas 
corpus. The court 7° held that the law was not unconstitu- 
tional, because it in no way appropriated private property 
to public use. 

Two years later, in reply to a question whether it was 
a crime to refuse a Negro equal accommodations in a hotel, 
Judge Emmons in Tennessee charged the grand jury ™ that 
the Federal government had no right to require individual 
innkeepers, theatre managers, etc., to entertain Negroes. 

134 


THEATRES 


In 1876 a Negro in Louisiana bought a ticket to a thea- 
tre, which he was not allowed to use on account of his 
color. He sued for five thousand dollars damages. The 
Constitution of that State, at the time, guaranteed equal 
accommodations in public places. The Louisiana court 7 
held that this law “does not enumerate a mere abstrac- 
tion, but it guarantees substantial rights.” The Negro’s 
claim was sustained, but the damages were reduced to three 
hundred dollars and costs. Both this and the Mississippi 
case arose in the South and were decided favorably to the 
rights of the Negro, but both came during the Reconstruc- 
tion régime. Since then, no such case appears to have risen 
in the South. 

In 1889 a Negro woman in Illinois, having been re- 
fused tickets to a theatre, had a white man buy them 
for herself and her husband. On presenting the tickets 
they were refused admission to seats in the theatre which 
the tickets called for. At the resulting trial, the proprie- 
tor offered to prove that he had, “ in order to avoid collision 
between the races, adopted a rule.(and that such rule was 
necessary) to the effect that the colored people should have 
one row to themselves in each part of the house, or as many 
rows as the tickets which they bought would call for.” 
This evidence was rejected, the court * holding that the 
Civil Rights Bill of Illinois could not be satisfied by sep- 
arate accommodations. 

Missouri has no Civil Rights Bill. A Negro, mistaken 
for a white man by the clerk in the box-office, bought tick- 
ets for seats in the orchestra of a Kansas City theatre. 
When he presented his tickets to the usher he was refused 
the seats called for, but was offered in exchange balcony 

135 


CIVIL RIGHTS OF NEGROES 


seats reserved for Negroes. The court ** before which the 
case was tried held that the rule of the theatre requiring 
separate accommodations for the races was not a violation 
of the Fourteenth Amendment. 

The most recent case ** appears to be a 1905 case in 
New York in which a Negro was ejected from a theatre 
‘by an employee. The proprietor was permitted to show 
that the ejectment was done while he was away and con- 
trary to his orders, and that he permitted Negroes to enjoy 
the privileges of the place. A verdict was thereupon found 
for him, but the case was remanded by the appellate court 
for a new trial, on the ground that the evidence was im- 
properly admitted. 


SKATING RINKS 


California, Illinois, and Massachusetts have considered 
skating rinks of enough importance to include them in 
their Civil Rights Bills. In 1885 the keeper of a skating 
rink in Iowa refused to let a Negro use it, and the Negro 
brought suit. The court’® held that the exclusion of a 
colored man from a skating rink not licensed is not illegal. 
The New York court *’ has held that a skating rink is 
a “place of public amusement” within the meaning of 
the statute, so that a keeper of one cannot refuse admis- 
sion to a Negro. | 


CEMETERIES 


The early Civil Rights Bills of New York, Florida, and 
Kansas prohibited race distinctions in public cemeteries. 
This stipulation, however, does not appear in the present 
statutes of any of the States, except Kansas. Race dis- 

136 


CEMETERIES 


tinctions in cemeteries are common. ‘The legislature of 
Mississippi *® of 1900, for instance, gave the Ladies’ Aux- 
iliary Cemetery Association, an organization of white 
women, permission to remove the monument and remains 
of the Negro State Secretary of State, James Lynch, from 
the white to the Negro cemetery in Jackson, Mississippi, 
provided it was done without expense to the State. 

The Raleigh, N. C., News and Observer of February 
20, 1906, quotes the Germantown, Pa., Guide as calling 
on the people to provide a cemetery where Negroes may 
be buried, saying that “unless something is done, the 
bodies of the colored poor will be denied the right of decent 
burial, for their disposal, of necessity, will be by means 
of the dissecting rooms of anatomical boards.” 


The Civil Rights Bills of the eighteen States have now 
been analyzed, and the judicial decisions arising therefrom 
have been considered. It is noticeable that, if one excepts 
the theatre cases of the Reconstruction period, not a case 
has come from a Southern State. The explanation must be 
that those States have never undertaken to require hotel- 
keepers, etc., to offer accommodations without regard to 
color: the Negroes have taken for granted that they would 
not be admitted to such places, except upon condition that 
they would accept the accommodations set apart for their 
race, and consequently have not applied for admission upon 
any other terms. In the other States the courts have, as 
a rule, interpreted the Civil Rights Bills very strictly. If 
a place is not specifically mentioned in the statute, courts 
have been very slow to include it under the general head 
of “other places of amusement or accommodation.” In 


137 


CIVIL RIGHTS OF NEGROES 


other words, this phrase, which is, in substance, tacked on 
to every statute, is a dead letter. The courts are chary, 
as they should be, of invading individual liberty and free- 
dom of business. But if a place is specifically mentioned 
in the statute, the law is not satisfied by offering separate 
accommodations to Negroes, even though such accommoda- 
tions are equal for both races in every respect; they must 
be identical. 


RACE DISCRIMINATION BY INSURANCE COMPANTES 


Some allied topics may be properly discussed under the 

general head of civil rights. 
Five States—Connecticut,’® Massachusetts,°° Ohio,®! 
New York,®? and Michigan,**—have deemed it necessary 
to pass laws prohibiting any discrimination on account of 
race or color by life insurance companies. All of the stat- 
utes are essentially the same. ‘They declare that no life 
insurance company shall make any distinction or discrim- 
ination between white and colored persons wholly or partly 
- of African descent, as to premiums or rates charged for 
policies; nor shall such company demand higher premiums 
from colored persons than from whites of the same age, 
sex, general condition of health, and hope of longevity; 
nor shall it make or require any rebate, diminution, or dis- 
count upon the sum to be paid on the policy in case of the 
death of the colored person. Such a company is forbidden 
to add any stipulation by which the insured binds himself, 
his heirs, executors, assigns, etc., to accept any sum less 
than the face value of the policy. Massachusetts provides 
that if a company refuses to insure a colored person making — 
138 


RACE DISCRIMINATION BY INSURANCE COMPANIES 


application, it must, upon his request, give him a certifi- 
cate of the regular examining physician, saying that the 
refusal was not because the applicant is a person of color, 
but solely upon the grounds of general health and prospect 
of longevity as would be applicable to white persons of the 
same age and sex. 

The Connecticut statute enacts that any condition or 
stipulation in the policy, inserted because of the color or 
race of the insured, shall be void. Ohio provides that any 
corporation, or officer or agent of such corporation, violat- 
ing the provisions of its statute, shall be fined for each 
offence not less than one hundred dollars nor more than 
two hundred dollars, but that nothing in the act shall be 
construed as to require any agent or company to take or 
receive the application for insurance of any person. New 
York makes the violation of the law a misdemeanor pun- 
ishable by a fine of from fifty dollars to five hundred dol- 
lars. Michigan goes a step further and declares that any- 
one violating the law shall forfeit to the State five hun- 
dred dollars, to be recovered by the attorney general, and 
that any officer or agent who violates it shall be guilty of - 
a misdemeanor and punished by imprisonment in the 
county jail not over one year or by a fine of from fifty dol- 
lars to five hundred dollars, or both. 

There must have been instances of discrimination by 
life insurance companies against Negroes, else these States 
would not have thought it necessary to enact such statutes. 
The explanation of this discrimination is probably not so 
much race prejudice as the general belief, based upon sta- 
tistics, that the’Negro, particularly in the colder climate 
of the North and West, has not the same hope of longevity 

| 139 


CIVIL RIGHTS OF NEGROES 


as the white man, being more subject to pulmonary and 
other mortal diseases. If the risk of mortality of the 
Negro is greater, the insurance company argued that it 
was justified in seeking compensation for assuming this 
increased risk by charging a higher premium. No case 
has been found arising under these statutes. 


RACE DISCRIMINATIONS BY LABOR UNIONS 


The attitude of labor organizations toward Negroes has 
of late been the subject of much comment, especially by the 
Negroes themselves, who complain that they are handi- 
capped in the struggle for existence because of the hos- 
tility of such organizations. Mr. Baker,** speaking of the 
North, said: “ And yet, although I expected to find the 
Negro wholly ostracised by union labor, I discovered that 
where the Negro becomes numerous or skilful enough, he, 
like the Italian or Russian Jew, begins to force his way 
into the unions. ... They have got in, ... not be- 
cause they are wanted, or because they are liked, but be- 
‘ cause, by being prepared, skilled, and energetic, the unions 
have had to take them in as a matter of self-protection. 
. . . In several great industries North and South, indeed, 
the Negro is as much a part of labor unionism as the white 
man.” There seems to be more opposition to Negroes 
joining the unions of Philadelphia than most Northern 
cities. ®> . 

One would expect to find, where the conflict between 
white and colored laborers exists, some evidence of it in 


statutes or court reports. But this resolution of the Gen- 
eral Court of Massachusetts,** passed in 1904, is the only So 


140 


- ee 4 arenes be en . F Sasi 
cee ke ee ne, eT RRL: ee ee ee ed 


a 


gt ed eee a es ee 


CHURCHES 


trace that has been found: “ Whereas, the national league 
of American wheelmen, at their convention held in Louis- 
ville, Kentucky, on the twentieth day of February, in the 
present year, voted to exclude colored persons from mem- 
bership in said organization, which exclusion affects the 
members of the organization resident in Massachusetts ; 
Resolved, That the General Court deprecates the action of 
the organization above referred to, and regards the enforce- 
ment of discriminations of this character as a revival of 
baseless and obsolete prejudices.” 


CHURCHES 


Colorado is the only State that has undertaken by legis- 
lation to guarantee to Negroes full and equal accommoda-. 
tions in churches. The rest have left it to the churches 
themselves to decide the matter. 

It is generally known that during slavery the Negroes, 
for the most part, attended the white churches, where 
galleries were set apart for them, were members thereof, 
and were served by white ministers. After Emancipation, 
the Negroes withdrew from the white churches and built 
places of worship of their own. To-day, in all parts of the 
country, where Negroes live in considerable numbers, they 
have their own churches. In such cities as Boston, where 
the doors of all churches are in theory open to every race, 
Negro churches are found in the Negro districts. 

Although there is practically race separation in the 
churches of the whole country, all the difficulties have not 
been solved. In 1903, the Freedman’s Aid and Southern 


_ Educational Society, an organization of the bishops of the 


141 


CIVIL RIGHTS OF NEGROES 


Methodist Episcopal Church, general secretaries of the 
church department, and leading laymen, met in session 
in Lincoln, Nebraska. Inasmuch as the purpose of this 
body was to devise and discuss means of improving the 
educational opportunities of the Southern Negroes, the 
churchmen of that race were present in good numbers. 
Some of the hotels in the city gave notice that they could 
not allow the colored delegates to eat in the main dining 
rooms, but that they could furnish them sleeping accommo- 
dations and serve them meals in their apartments.*’ It is 
along this line that the difficulty usually comes. 

The Baptist denomination recently organized the Gen- 
eral Baptist Convention of America, which held its first 
meeting in St. Louis in 1905. The next meeting was to 
have been in Louisville, Kentucky, May 5 and 16, 1906. 
The executive committee of the convention postponed the 
meeting for a year, assigning as their reason, or one of their 
reasons, the fact that they experienced difficulty in secur- 
ing a church in which to hold the convention, the white 
Baptists being averse to having the colored members of the 
denomination assemble with them. It was arranged later 
that the whites and Negroes should meet in the same edi- 
fice, but that the Negroes should be restricted to the use of 
the balconies. This, however, was resented by the Negroes.®* 

The Presbyterian Church also has had to face the race 
problem. In its general assembly at Des Moines, Iowa, in 
1906, the committee on church policies recommended the 
erection of a synod in Alabama to include the presbyteries 
of Birmingham, Levere, and Rogersville, which are com- 


posed of colored churches. They had hitherto been in- _ 


cluded in the synod of Tennessee. The report provoked 
142 


CHURCHES 


such a discussion that it was carried over to the next meet- 
ing, and no subsequent account has appeared.*® At the gen- 
eral assembly of 1908, held in Pittsburg, Pennsylvania, the 
question arose again out of a report of the Board of Freed- 
men’s Missions, some of the members from the North re- 
senting such a separation in the missionary efforts.%° 
The Episcopal Church has probably had the most diffi- 
%, culty with the race problem. This Church has had no sep- 
*: arate organization for Negroes. Both races meet together 
in the annual diocese conventions, without distinction, and 
participate in the business of the Church. At one of these 
conventions, held at Tarboro, North Carolina, in 1907, the 
following resolution was passed: “ That the time has come 
when the welfare of both races in the Southern States re- 
quires that each race should have its own ecclesiastical 
legislative assemblies, and that we urge the General Con- 
vention to take immediate action.” The colored clergy and 
congregations had already expressed their willingness to 
submit the whole matter to the general convention. In 
speaking for separation, Bishop Cheshire, of North Caro- 
lina, said: “I have come to this conclusion in spite of the 
sentiments and convictions of a life-time, and though my 
mind and conscience compel my assent to this necessity, 
my heart still clings to the old ideal of a church and a 
_ diocese which in its annual gatherings should represent vis- 
ibly the oneness of all races and colors in Christ. . . . We 
must confront the actual facts of the day. I believe that, 
in one way or another, both the white race and the colored 
race, consciously or unconsciously, demand a different ar- 
rangement of our ecclesiastical institutions. I believe that 
_ some separate organization for our colored work is coming 
143 


CIVIL RIGHTS OF NEGROES 


in the near future.” **. At the general convention, which 
met in Richmond, Virginia, in October, 1907, the question 
of the separation of the races was much discussed, but 
the actual outcome has not been learned. It developed in 
the debate that the Southern bishops desired separation, 
wishing to be relieved of the burden of the Negroes in 
their dioceses, while the bishops from other sections pre- 
ferred the present arrangement, not desiring to be burdened 
with a class of people not in their dioceses.*? 

The Young Men’s Christian Associations of the North- 
ern cities have to meet the problem of the Negro. The 
New Haven, Connecticut, people refused to permit Negroes 
to attend the Y. M. C. A., and a separate building had to 
be provided for them.°? 

Within the colored church itself there is manifest a con- 
flict between the Negroes proper and mulattoes. There is 
a town in North Carolina in which they have practical sep- 


aration in the churches, the black Negroes going to one - 


church and the bright mulattoes to another. A similar sep- 
aration of the Negroes and mulattoes in churches exists, 
to some extent, in Charleston, South Carolina. At a 
Negro Christian Congress at Washington City, in 1906, 
the chairman of the meeting was charged with removing 
from the program dark-skinned men and substituting light- 
skinned men. It provoked such a discussion as to divide 
the meeting into two factions.* 


NEGROES IN THE MILITIA 


The Brownsville affair—that is, the dismissal without 
honor, through the order of President Roosevelt, of a 


whole regiment of Negro soldiers because of the miscon- 


144 


NEGROES IN THE MILITIA 


duct of some of them and the refusal of the others to 
testify against the guilty ones, and the championship of 
the cause of the Negroes by Senator Foraker—has brought 
into much prominence the question of the Negro as a sol- 
dier. : 

The Southern States have been and are unfavorable to 
allowing Negroes to serve in the militia. South Carolina,®° 
in 1865, declared that persons of color constituted:no part 
of the militia of the State. Arkansas,°° in 1867, accorded 
to Negroes all the rights of white citizens, with a few 
exceptions, one of which was that nothing in the statute 
should be construed as modifying any statute or common 
law usage in the State respecting the service of Negroes 
in the militia. North Carolina *’ provided that white and 
colored members of the detailed militia should not be com- 
pelled to serve in the same companies. Georgia,®°* in 
1905, by statute, abolished the colored troops of the State, 
active and retired, and discharged the officers and men 
from the military service of the State. 

There is very little legislation on the subject in the 
other States. In 1879, the legislature of Connecticut °° 
authorized the commander-in-chief of the State militia to 
organize four independent Negro companies of infantry 
to be part of the National Guard. West Virginia,’®® in 
1889, provided that, if any colored troops should be or- 
ganized, they should be enlisted and kept separate and 
apart from the other troops, and should be formed into 
separate companies and regiments. New Jersey,’® in 
1895, made provision for four companies of colored infan- 
try, presumably meaning that they should be all colored 
and kept separate from the other troops. 

11 145 


CIVIL RIGHTS OF NEGROES 


SEPARATION OF STATE DEPENDENTS 


The Southern States, as a rule, require a separation by 
race of inmates of State charitable and penal institutions, 
and where it is not provided for by statute, it is done as 
a matter of custom. Alabama,’ for instance, makes it 
unlawful for any jailer or sheriff, having charge of white 
and colored prisoners before conviction, to imprison them 
permanently together in the same apartments of the jail 
or other places of safe-keeping, if there are enough sepa- 
rate apartments. It is also unlawful*®* for white and 
colored convicts to be chained together, allowed to sleep 
together, or confined in the same room or apartment when 
not at work. 

The legislature of Arkansas?°* passed a statute in 
1903, directing that in the State penitentiary and in all 
county jails, stockades, convict camps, and all other places 
where prisoners are confined, separate apartments should 
be provided and maintained for white and Negro prison- 
ers. Separate bunks, beds, bedding, dining tables, and 
other furnishings were required, and after they had once 
been assigned to a prisoner of one race they must not be 
changed to the use of one of the other race. White pris- 
oners must not be handcuffed or otherwise chained or 
tied to a Negro prisoner. 

Georgia *°° does not allow prison-keepers, or firms leas- 
ing or controlling convicts, to confine white and colored 
convicts together, or to work them chained together, or to 
chain them together in going to and from their work or at 
any other time. Mississippi *°® provides that no discrim- 
ination shall be made on account of race, color, or previous 

146 


SEPARATION OF STATE DEPENDENTS 


condition, in working convicts. This does not mean that 
they shall not be separated, as they are in Georgia, but is 
simply a prohibition against discrimination in the quality 
of work assigned to the two races. At the last session 
of the legislature of North Carolina, a bill was 
passed providing for the separation of white and col- 
ored prisoners in the State penitentiary and in the State 
and county convict camps during sleeping and eating 
hours. 

That a separation of the two races exists in the jails of 
Washington City is evidenced by a protest issued a year 
or so ago by the National Equal Rights Council of that 
city, a Negro organization, against the separation of the 
white and colored prisoners in the jails of the city. There 
was no allegation, however, that the cells were not equal 
in accommodation, the objection being raised solely at the 
principle of separation.1°8 

As to reformatories, Georgia *°® provides that they 
shall be so constructed as to keep white and colored in- 
mates separate. West Virginia **° requires that the white 
and colored inmates of its reform school for boys shall be 
kept separate, and the inmates of its industrial home for 
girls (also a reformatory) shall be separate as far as 
practicable. 

As to paupers, Alabama *!4 authorizes the county com- 
missioners of Washington County to keep separate accom- 
modations for the maintenance of white and colored 
paupers. 7 

Not many States have statutes which say in so many 
words that lunatics, and that the deaf, mute, and blind 
shall be kept separated according to race; but one finds 

147 


CIVIL RIGHTS OF NEGROES 


appropriations for colored asylums and schools, etc., and 
one is justified in concluding that, where a colored asylum 
or school is built, the colored persons are not allowed in 
the other asylums and schools of the State. Alabama,” 
for instance, has a school for the Negro deaf and blind 
at Talladega, under the control and management of the 
board of trustees of the white school for the deaf, and 
makes an annual appropriation for the support of the 
school. Arkansas ‘*'® also provides that applicants to the 
deaf-mute asylums shall be received without restriction 
on account of race or color, but does not forbid their sepa- 
ration by race within the asylum. 'Tennessee,‘** as early 
as 1866, provided that there should be separate asylums for 
the colored blind, deaf and dumb, and lunatics, and the 
trustees of these institutions were given power to prepare 
buildings for colored insane, “so as to keep them secure 
and safe, and yet separate and apart from the white 
patients.” In 1881, that State **® appropriated $25,000 
to provide accommodations for the colored blind at Nash- 
ville, and the same amount for the colored deaf and dumb 
at Knoxville. Kentucky 77° likewise provided in 1876 that 
white and colored lunatics should not be kept in the same 
building. New York*” has on many occasions made 
appropriations for asylums for colored children, thus 
leaving the impression that such children are not admitted 
to the white asylums. North Carolina ‘+*® maintains sep- 
arate asylums for its white and colored insane. And 
Georgia **® requires the asylums.of the State to provide 
apartments for the insane Negro residents of the State. 
Indiana,’”° in 1879, made an appropriation to associations 
formed for the purpose of maintaining an asylum for col- 
148 


ee 


ee ee eee eee = 


se 


a, 


NOTES 


ored orphan children. The West Virginia **? asylum for 
insane must have separate wards for white and colored 
patients. 


NOTES 


1 Bouvier’s “ Law Dictionary,” I, p. 331. 

214 Stat. L.'27,) chap. 782. 

8 Flack, “ The Adoption of the Fourteenth Amendment,” 
pp. 46-50. 

4 Bowlin v. Com., 1867, 65 Ky. (2 Bush) 5. 

5 Fed. Case No. 16,151 (1866). 

6 Fed. Case No. 14,247 (1867). 

7“ The Adoption of the Fourteenth Amendment,” pp. 53- 
54. 

8 Tbid., p. 94. 

°16 Stat. L. 144, chap. 114. 

16 Wall, 36) at’ pp. 71-72) (1872). 

718 Stat. L385, chap. 114. 

12 Wed. Case No. 18,258 (1875). 

13 Hed. Case No. 18,260 (1875). 

14 Civil Rights Cases, 1875, 109 U. S. 3, at pp. 24, 11, 
and 18. 

15 Acts and Resolves of Mass., 1864-65, p. 650. 

16 Tbid., Jan. sess., 1866, p. 242. 

17 Del. Laws, 1871-73, pp. 686-87. 

18 Tbid., 1875-77, chap. 194. 

19 Laws of Kan., 1874, chap. 49, sec. 1. 

ZO N.Y. tat. L.,) bX, pp. 080-04. 

aU Taws of N. Y., 1881, Tp. 541. 

22 Laws of Fla., 1865, p. 25. 

23 Tbid., 18738, chap. 1947. 

24 Acts of La., 1869, p. 57. See also Acts of La., 1870, 
Deol. 

149 


CIVIL RIGHTS OF NEGROES 


25 Tbid., 1873, pp. 156-57. 

26 Acts of Ark., 1873, pp. 15-19. 

27 Laws of Tenn., 1875, pp. 216-17. 

289 Baxter, 584. 

29 Laws of N. C., 1876-77, pp. 589-90. 

30 Laws of Tenn., 1885, pp. 124-25. 

31 Revision, 1902, sec. 1164; Pub. Acts of Conn., 1905, p. 
3238. 

32 Annotated Code, 1897, sec. 5008. 

33 General Stat., 1709-1895, I, p. 804. 

84 Laws of O., 1884, pp. 15-16; 1894, pp. 17-18; Bates’s 
Annotated Stat. (Everett’s 6th Ed.) II, p. 2469. 


85 Revised Stat., 1908, secs. 609-10; Laws of Colo., 1895, 


pp. 139-40. 

86 Laws of IIl., 1885, pp. 64-65; Jones and Addington’s 
Supplement, 1902, IV, p. 395. 

87 Burns’s Annotated Stat., 1908, II, secs. 3863-65. 

88 Acts and Resolves of Mass., 1885, p. 774; 1893, p. 1820; 
1895, p. 519. 

89 Compiled Laws, 1897, III, sec. 11,759, p. 3495. 

40 Laws of Minn., 1897, p. 616; 1899, chap. 41; Revised 
Laws, 1905, sec. 2812. 

41 Compiled Stat., 1907, secs. 1932-33, p. 501. 

42 Laws of R. I., 1884-85, p. 171; General Laws of R. L, 
1896, p. 978. 

48 Laws vot N.v¥.;°1893, LL, po 47203, 1899.) Lian ae 
Consolidated Laws of N. Y., 1909, I, pp. 626-27. 

44 Laws of Pa., 1887, pp. 180-81. 

45 Cotton and Ballinger’s Annotated Codes and Stat., II, 
secs. 7069-70, p. 1953. 

46 Stat., 1898, II, pp. 2676-77, sec. 4398 ec. 

47 Civil Code, 1906, pp. 29-30. 

48 General Stat., 1905, secs. 2507-08. 

150 


NOTES 

49. S. v. Newcomer, 1876, Fed. Case No. 15,868. 

50 Russ’s Application, 1898, 20 Pa. Co. Ct. Rep. 510. 

51 Furchey v. Eagleson, 1896, 48 N. E. 146. 

52 Acts and Resolves of Mass., 1896, pp. 659-60. 

58 Alsberg v. Lucerne Hotel Co., 1905, 46 Misc. Rep. (N. 
Y=!) G1e. 

54 Lewis v. Hitchcock, 1882, 10 Fed. 4. 

55 Ferguson v. Gies, 1890, 82 Mich. 358; 46 N. W. 718. 

56 Bryan vy. Adler, 1897, 72 N. W. 368. 

57 De Veaux v. Clemmons, 1898, 17 O. Cir. Ct. Rep. 33. 

58 Humburd v. Crawford, 1905, 105 N. W. 380. 

59 Messenger y. State, 1889, 25 Neb. 674. 

60 Faulkner v. Salozzi, 1907, 79 Conn. 541. 

61 Burks v. Basso, 1905, 73 N. E. 58. 

62 Qom. v. Sylvester, 1866, 95 Mass. (13 Allen) 247. 

63 Rhone v. Loomis, 1898, 74 Minn. 200; 77 N. W. 31. 

64 Kellar v. Koerber, 1899, 55 N. E. 1002. 

8&5 Acts of La., 1908, p. 236. 

66 State ex rel. Tax Collector v. Falkenheimer, 1909, 49 
So. 214. 

67 Baker, “ Following the Colour Line,” p. 36. 

68 Nashville, Tenn., Weekly Journal and Tribune, Feb. 2, 
1907. 

69 Cecil v. Green, 1896, 161 Ill. 265; 43 N. E. 1105. 

70 Donnell v. State, 1873, 12 Am. Rep. 375; 46 Miss. 661. 

71 Fed. Case No. 18,260 (1875). 

72 Joseph v. Bidwell, 1876, 28 La. Ann. 382. 

73 Baylies v. Curry, 1889, 128 Tl. 287. ae 

74 Younger v. Judah, 1892, 19S. W. 1109. 

75 Thomas v. Williams, 1905, 95 N. Y. Sup. 592. 

786 Bowlin v. Lyon, 1885, 67 Ia. 536. 

77 People v. King, 1886, 42 Hun. 186; affirmed in 110 N. 
Y. 418. 

rial 


CIVIL RIGHTS OF NEGROES 


78 Laws of Miss., 1900, p. 171. 

79 Revision, 1902, sec. 3535. 

80 Revised Laws, 1902, II, p. 1153. 

81 Laws of O., 1889, pp. 163-64. 

82 Laws of N. Y., 1891); p. 288. 

83 Pub. Acts of Mich., 1893, pp. 60-61. 

84 “ Following the Colour Line,” p. 135. 

85 [bid., pp. 142 and 160. 

86 Acts and Resolves of Mass., 1894, p. 825. 

87 Lincoln, Neb., Star, Nov. 7, 1903. 

88 Raleigh, N. C., News and Observer, April 6, 1906. 

89 Norfolk, Va., Landmark, May 27, 1906; Raleigh, N. C., 
News and Observer, May 29, 1906. 

90 Raleigh, N. C., News and Observer, June 3, 1908. 

91 Thid., May 19 and 26, 1907. 

92 Thid., Oct. 9 and 20, 1907. 

°3 Tbid., March 18, 1906. 

®4 Richmond, Va., News-Leader, Aug. 3, 1906. 

Po Lawsaot-b.:G.,, 1865; p.. 275! 

°6 Laws of Ark., 1866-67, p. 99. 

°7 Pub. Laws of.N. C., 1868, p.) 35. 

% Laws of Ga., 1905, p. 166. 

2 Pub. Acts of Conn., 1879, pp. 377-78; 1883, p. 289. 

100 Laws of W. Va., 1889-90, p. 87. 

101, Laws of N. J., 1895, p! 274: 

102 Laws of Ala., 1875-76, p. 285; repeated in the Code 
of 1876, sec. 4821, p. 915. 

108 Thid., 1884-85, p. 192; Code, 1896, IT, p. 210. 

104 Acts of Ark., 1903, p. 161. 

105 Laws of Ga., 1890-91, I, p. 218. 

106 Laws of Miss., 1872, p. 85. 

107 Laws of N. ©.,' 1909, p. 1215. 

108 Raleigh, N. C., News and Observer, July 21, 1907. 

152 


NOTES 


109 Laws of Ga., 18938, p. 121. 

110 Laws of W. Va., 1889, p. 15; Code, 1906, pp. 770 and 
776. 

111 Local Acts of Ala., 1898-99, p. 86. 

112 Code, 1907, II, secs. 1949-52. 

113 Code, 1874, sec. 884; 1884, sec. 2505, p. 572. 

114 Taws of Tenn., 1865-66, pp. 5 and 65. 

115 TOid., 1881, p.. 139. 

Tews of Ky. 1816, Ly pe 112. 

112 Laws of N. Y., 1866, I, p. 1675; 1867, Il, p. 1850; 
1868, II, pp. 1845-49; 1869, I], pp. 2064-66; 1870, II, pp. 
1689-90, ete. | 

118 Laws of N. C., 1874-75, pp. 338-39. 

119 Laws of Ga., 1885, p. 399. 

120 Code, 1901, II, sec. 4598. 

121 Code, 1906, sec. 2699, p. 1104; Laws of W. Va., 1897, 
p. 42; 1904, p. 160. 


CHAPTER VIII 
SEPARATION OF RACES IN SCHOOLS 


BEREA COLLEGE AFFAIR 


THREE incidents, occurring during the past six years 
under widely varying circumstances and in far separated 
localities, have brought the question of the separation of 
the white and colored races in schools into much promi- 
nence. 

On the 22d of March, 1904, the legislature of Ken- 
tucky * enacted the following statute: 

“Sec. 1. That it shall be unlawful for any person, 
corporation or association of persons to maintain or oper- 
ate any college, school or institution where persons of 
the white and Negro races are both received as pupils for 
instruction; and any person or corporation who shall 
operate or maintain any such college, school or institution 
shall be fined one thousand dollars, and any person or cor- 
poration who may be convicted of violating the provisions 
of this act shall be fined one hundred dollars for each day 
they may operate said school, college or institution after 
such conviction. | 

“Sec. 2. That any instructor who shall teach in any 
school, college or institution where members of said two 
races are received as pupils for instruction shall be guilty | 

154 


BEREA COLLEGE AFFAIR 


of operating and maintaining same and fined as provided 
in the first section hereof. 

“Sec. 3. It shall be unlawful for any white person to 
attend any school or institution where Negroes are re- 
ceived as pupils or receive instruction, and it shall be un- 
lawful for any Negro or colored person to attend any 
school or institution where white persons are received as 
pupils, or receive instruction. Any persons so offending 
shall be fined fifty dollars for each day he attends such in- 
stitution or school: Provided, That the provisions of this 
law shall not apply to any penal institution or house of 
reform. 

“Sec. 4. Nothing in this act shall be construed to pre- 
vent any private school, college or institution of Jearning 
from maintaining a separate and distinct branch thereof, 
in a different locality, not less than twenty-five miles dis- 
tant, for the education exclusively of one race or color. 

“ Sec. 5. This act shall not take effect, or be in operation 
before the fifteenth day of July, Nineteen Hundred and 
Four.” 

This law was general in its terms, requiring, under 
heavy penalty, the separation of the white and colored 
races in all schools of the State, private as well as public. 
But at the time of the consideration of the bill, the legis- 
lators probably knew that there was only one school in the 
State which admitted both white and colored students. 
That was Berea College, which had been established about 
fifty years before for the purpose of “ promoting the cause 
of Christ ” and of giving general and nonsectarian instruc- 
tion to “all youth of good moral character.” It was pri- 
marily for the benefit of the mountain whites of Kentucky, 

155 


SEPARATION OF RACES IN SCHOOLS 


Tennessee, Virginia, and the Carolinas. After the Civil 
War, the doors of the school had been opened to Negroes, 
and in 1904, Berea had a student-body of nine hundred 
and twenty-seven, of whom one hundred and seventy-four 
were Negroes.?, The President and Trustees of the col- 
lege protested against the enactment of the above law, but 
to no avail. When the session of 1904-5 began, the col- 
ored students were refused admission. The college at 
once took steps to aid these Negro youths. It bore the 
transportation expenses of about a hundred of them to 
Fiske University, Knoxville College, Hampton  Insti- 
tute, and other distinctly colored schools. The white 
students left behind gave to the colored students leay- 
ing Berea the following expression of their regard for 
them : 

“Friends and Fellow-Students: As we meet for the 
first time under new conditions to enjoy the great privileges 
of Berea College, we think at once of you who are now 
deprived of these privileges. Our sense of justice shows 
us that others have the same rights as ourselves, and the 
teaching of Christ leads us to ‘remember them that are in 
bonds as bound with them.’ 

“We realize that you are excluded from the class rooms 
of Berea College, which we so highly prize, by no fault 
of your own, and that this hardship is a part of a long line 
of deprivations under which you live. Because you were 
born in a race long oppressed and largely untaught and 
undeveloped, heartless people feel- more free to do you 
wrong, and thoughtless people meet your attempts at self- 
improvement with indifference or scorn. Even good people 


sometimes fear to recognize your worth, or take your part 


156 


anes 0 


BEREA COLLEGE AFFAIR 


in a neighborly way because of the violences and prejudices 
around us. 
_ “We are glad that we have known you, or known 
about you, and that we know you are rising above all dis- 
couragements, and showing a capacity and a character that 
give promise for your people. ... And you will always 
have our friendship, and the friendship of the best people 
throughout the world. We hope never to be-afraid or 
ashamed to show our approval of any colored person who 
has the character and worth of most of the colored students 
of Berea. We are glad that the college is providing funds 
to assist you in continuing your education, and we are sure 
the institution will find ways in which to do its full duty 
by the colored race.” ® 

As might have been expected, the statute separating the 
races in schools aroused much comment throughout the 
country, the northern and eastern press being, as a rule, 
hostile to it, the southern press coming to its defence. 
Haste was made to have a test case involving the consti- 
tutionality of the law heard. On June 12, 1906, the Ken- 
tucky Court of Appeals in the case of Berea College v. 
The Commonwealth * upheld its constitutionality, being of 
opinion that the law in question did not violate the Bill of 
Rights of the State Constitution, because the requirement 
of separation was a reasonable exercise of the police power 
of the State, and did not violate the Fourteenth Amend- 
ment by depriving Berea College of its property without 
due process of law, because the right to teach white and 
colored children in a private school at the same time and 
place was not a property right, but the court added that that 
_ part of the statute requiring a separate school for the other 
157 


SEPARATION OF RACES IN SCHOOLS 


race, if established, to be at a distance of not less than 
twenty-five miles, was unreasonable. The court took the 
position that the white and black races are naturally an- 
tagonistic, and that the enforced separation of the children 
in schools is in line with the preservation of the peace. 
The Supreme Court of the United States,’ on November 
9, 1908, affirmed the opinion of the State court. Mr. Jus- 
tice Brewer, however, placed his decision upon the ground 
that the legislature has a right, by express reservation, to 
amend the charter so long as the amendment does not de- 
feat or substantially impair the object of the grant under 
the charter. Mr. Justice Harlan, in a dissenting opinion, 
said the court should meet the entire question squarely and 
decide whether it is a crime under any conditions to edu- 
cate white children and Negro children at the same institu- 
tion. He said that the Kentucky statute was void as an 
arbitrary invasion of the rights of liberty and property 
granted by the Fourteenth Amendment against unauthor- 
ized State action. “ Have we,” he asked, “ become so in-. 
oculated with prejudice of race that an American govern- 
ment, professedly based on the principles of freedom; and 
charged with the protection of all citizens alike, can make © 
distinction between such citizens in the matter of their 
voluntary meeting for innocent purposes simply because of 
their respective races? Further, if the lower court be right, 
then a State may make it a crime for white and colored 
persons to frequent the same market places at the same 
time, or appear in an assemblage of citizens convened to 
consider questions of a public or political nature in which 
all citizens, without regard to race, are equally interested. 
Many other illustrations might be given to show the mis-— 
158 


4 


EXCLUSION OF JAPANESE FROM PUBLIC SCHOOLS 


chievous, not to say cruel, character of the statute in ques- 
tion, and how inconsistent such legislation is with the great 
principle of the equality of citizens before the law.” Mr. 
Justice Harlan added that he did not wish to be under- 
stood as criticising the system of separate public schools 
for the races, but that his censure was directed at the 
penal provision of the Kentucky law involved in this case, 
which he considered unconstitutional, and so vitiating the 
whole statute. 


EXCLUSION OF JAPANESE FROM PUBLIC SCHOOLS OF SAN 
FRANCISCO 


The second incident, which opened the question of the 
separation of the races in schools and which led to inter- 
national comment, was the exclusion of the Japanese chil- 
dren from the public schools of the city of San Francisco. 
A law was enacted by the California Legislature * on March 
12, 1872, which provided that school trustees should have 
the power to establish separate schools for Indian children 
and for the children of Mongolian and Chinese descent, 
and, when separate schools were furnished, to keep Indian, 
Mongolian, and Chinese children from attending any 
other school. The law was amended? in 1880, 1885, 1891, 
1893, 1895, and 1903, but the provision for separation 
of the races remained essentially unchanged. This law 
was not enforced until 1901, when the labor vote became 
predominant. Then, according to Secretary Metcalf,® 
who investigated the conditions, the labor unionists began 
a crusade to exclude the Japanese laborers from California, 
_as the Chinese had already been excluded. On May 6, 
159 


SEPARATION OF RACES IN SCHOOLS 


1905, the Board of Education of San Francisco passed the 
following resolution: 

“That the Board of Education is ddtannned in its 
efforts to effect the establishment of separate schools for 
Chinese and Japanese pupils, not only for the purpose of 
relieving the congestion at present prevailing in our 
schools, but also for the higher end that our children should 
not be placed in any position where their youthful impres- 
sions may be affected by association with pupils of the 
Mongolian race.” On October 1, 1906, the Board took the 
next step and adopted this resolution: “ That in accordance 
with Article X, Section 1662, of the school law of Cali- 
fornia, principals are hereby directed to send all Chinese, 
Japanese or Korean children to the Oriental Public School, 
situated on the south side of Cary street between Powell 
and Mason streets, on and after Monday, October 15, 
1906.” 

On the day the latter rule went into effect there were 
28,736 school children in San Francisco, of whom ninety- 
three were Japanese distributed in twenty-three primary 
and grammar schools of the city ® and nearly half the Jap- 
anese children were in two of the twenty-three schools. 
When the primary schools, except the Oriental, were closed 
to the Japanese children the Japanese residents became 
indignant. They appealed to their consul, and he, to their 
ambassador at Washington. The latter, in turn, called on 
the President, reporting the matter at the same time to the 
home government. Alarmists began to talk of war with 


Japan. President Roosevelt dispatched Secretary Metcalf — 


to California to make investigations. To use the Presi- 


dent’s words, “I authorized and directed Secretary Met- 


160 


Se 


EXCLUSION OF JAPANESE FROM PUBLIC SCHOOLS 


calf to state that if there was failure to protect persons and 
property, then the entire power of the Federal government 
within the limits of the Constitution would be used 
promptly and vigorously to enforce the observance of our 
treaty, the supreme law of the land, which treaty guaran- 
teed to the Japanese residents everywhere in the Union full 
and perfect protection for their persons and property, and 
to this end everything in my power would be done, and all 
the forces of the United States, both civil and military, 
which I could lawfully employ, would be employed.” 
Mayor Schmitz and a number of prominent men of the 
city hurried across the continent to confer with the Presi- 
dent. A troublesome point of constitutional law was in- 
volved. It was admitted that public education is distinctly 
a State function. A treaty is declared by the Federal Con- 
stitution #° to be the “supreme law of the land.” Is a 
treaty the “supreme law of the land” in the sense that 
the President or Supreme Court can treat as invalid a 
State statute which contravenes it, or must the Federal 
government bow in submission to that State statute even 
though it is counter to a treaty obligation? The treaty of 
1894 with Japan accorded to the Japanese residents in the 
United States the rights and privileges of the “ most fa- 
vored nation.” The State of California had declared that 
Mongolian children, among which were Japanese, might, at 
the discretion of the Board of Education, be required to go 
to separate schools for their race. The children of the other 
“most favored” nations were permitted to attend the 
regular public schools. Is admission to the regular public 
schools one of the rights and privileges guaranteed to Jap- 
anese children by the treaty, which cannot be limited by a 
12 161 


SEPARATION OF RACES IN SCHOOLS 


State, or does the State of California, by its police power, 
have a right to separate the school children by race, re- 
gardless of national treaties? These questions, however, 
did not have to be answered; before the crisis came, all 
parties seemed to have arrived at a satisfactory compro- 
mise. It was an agreement that all Japanese children not 
over fourteen years of age should be readmitted to the 
primary schools, and those over that age should be ad- 
mitted to the schools of higher grade, and the Japanese 
coolie labor should be excluded. ‘Thus was obviated what 
at one time looked like the approach of an international 
controversy over the separation of the races in schools. 

During the last session of the California legislature, 
that of 1909, several bills concerning the Japanese were 
introduced, one of which was as follows: “ Every school, 
unless otherwise provided by law, must be open for the 
admission of all children between six and twenty-one years 
of age residing in the district, and the Board of School 
Trustees or city Board of Education have power to admit 
adults and children not residing in the district whenever 
good reasons exist therefor. 

“ Trustees shall have the power to remove children of 
filthy or vicious habits or children suffering from conta- 
gious or infectious diseases, and also to establish separate 
schools for Indian children and for children of Mongolian 
or Japanese or Chinese descent. 

“When such separate schools are established, Indian, 
Chinese, Japanese or Mongolian children must not be ad- 
mitted into any other school; provided, that in cities and 
towns in which the kindergarten has been adopted, or may 
hereafter be adopted as part of the public primary schools, 

162 


DR. ELIOT ON SEPARATION OF RACES IN SCHOOLS 


children may be admitted to such kindergarten classes at 
the age of four years; and provided further, that in cities 
or school districts in which separate classes have been or 
may hereafter be established for the instruction of the 
deaf, children may be admitted to such classes at the age 
of three years.” Practically the only difference between 
this bill and the present law is the insertion of “ Japanese.” 

President Roosevelt considered this and the other bills 
of such serious import that he telegraphed to the Governor 
of the State to use his influence to prevent enactments of 
this nature. After a long fight the bill was killed. The 
legislature made an appropriation for a census of the Jap- 
anese in California in order to see just how serious the 
problem was.’? 

The people along the Canadian Pacific coast are facing 
a question similar to that in California. A member of 
the provincial Parliament from Manaimo. British Colum- 
bia, has recently given notice that he will introduce a 
measure providing for the exclusion of Oriental children 
from public schools, declaring that his purpose is to compel 
the government to maintain separate schools.’ 


DR. CHARLES W. ELIOT ON SEPARATION OF RACES IN 
SCHOOLS 


The third incident referred to, though not a matter of 
legislation, did much to focus the attention of the country 
at large upon the question of the separation of the races 
in schools. The Twentieth Century Club of Boston met at 
luncheon on the 14th of February, 1907, to consider the 
situation of Berea College. Dr. Charles W. Eliot, then 

163 


SEPARATION OF RACES IN SCHOOLS 


President of Harvard University, was one of the speakers. 
In the course of his remarks, he said: “ If the numbers of 
whites and blacks were more nearly equal [in Boston] we 
might feel like segregating the one from the other in our 
own schools. It may be that as large and generous a work 
can be done for the Negro in this way as in mixed schools. 
So the separation of the races in the Berea schools is not 
really an abandonment of the principle, although it may 
be a departure from the original purpose. 

“‘ Perhaps if there were as many Negroes here as there 
we might think it better for them to be in separate schools. 
At present Harvard has about five thousand white students 
and about thirty of the colored race. The latter are hidden 
in the great mass and are not noticeable. If they were 
equal in numbers or in a majority, we might deem a separa- 
tion necessary.” *# 

These conservative and guarded words of the head of 
the University which has, above all other American insti- 
tutions of learning, preserved and encouraged the “ open- 
door policy ” toward students of all races, struck consterna- 
tion to the radicals of both the white and colored races in 
the North and East, and gladdened the hearts of many of 
the South and West who are facing their own race prob- 
lems. One side felt that it had lost an illustrious standard- 
bearer; the other, that it had won a strong ally. 

These three incidents show that the separation of the 
races in schools is a live question, worthy of an investiga- 
tion. It is probable that there are many private and pub- 
lic schools outside of the South which do not, in fact, admit 
colored students. Probably there are schools which would 
close their doors to white applicants. It may be that there 

164 


SEPARATION BEFORE 1865 


are actual discriminations against one or the other race 
in those schools which claim to make no distinction on 
account of race or color. But many such matters as these 
have not come under the eye of the law, and so have no 
place here. 


SEPARATION BEFORE 1865 


Although one need not consider in detail the laws 
separating the races in schools before the Civil War, be- 
cause the public school system then was poorly developed, 
as a rule, and the Negro had not attained the rights of a 
citizen in many States, still it is well to look into some of 
the antebellum statutes and decisions to find precedents 
for later statutes and rulings of the courts upon this 
subject. 

In Ohio, prior to 1848, no provision was made for the 
public education of colored children, and the property of 
colored persons was not taxed for school purposes. In fact, 
a law *® of February 10, 1829, expressly excluded black and 
mulattoes from the public schools. In 1834, the child of 
a man three-quarters white and of a white woman was de- 
nied admission to a public school. In a case *® arising out 
of it, the court held that a child with more than one-half 
white blood is entitled to the privilege of the whites, say- 
ing: “ We think the term white as used in the law describes 
blood and not compleaion. ... The plaintiff’s children, 
therefore, are white within the meaning of the law, though 
the defendants have had the shabby meanness to ask from 
him his contribution of tax, and exclude his children from 
the benefit of the school he helped to support.” 

In 1848, a law? of the same State provided for the 

165 


SEPARATION OF RACES IN SCHOOLS 


levy of a tax upon the property of colored persons for the 
support of colored schools, if the objection was made to the 
admission of colored children into white schools. It pro- 


hibited the application of any part of the tax paid by white __ 


persons to the support of colored schools unless the whites 
assented thereto. A law having so many options was objec- 
tionable and was repealed within a year. The next year, 
1849, a statute 1® was enacted with regard to the education 
of colored children, but this appropriated to the colored 
schools only the funds arising from taxes paid by colored 
persons. The year before the white patron of a school had 
brought an action against the directors because they 
erroneously admitted colored children to the school, thus 
contriving, he said, “to deprive him of the benefit” of 
sending his children to the school. The court ?® ruled that 
the directors were not liable because they did not act with 
corrupt motives, but had simply misjudged the law. 

The law of 1849 gave rise to a difficulty. The Consti- 
tution of Ohio, by restricting the electorate to white per- 
sons, had provided that those entrusted with any power con- 
nected with the government of the State should be white 
persons. Are school directors entrusted with any govern- 
mental power? ‘The court *° held that they are not, in the 
sense of the Constitution, and that colored persons might 
be directors of colored schools. A statute? of 1853 re- 
pealed that of 1849 and provided for a division of the pub- 
lie school funds in proportion to the number of children of 
school age, regardless of color. But separate schools were 
still maintained. Under this law, it was held 22 that the 
children of three-eighths African and five-eighths white 
blood, who were distinctly colored and generally treated 

166 : 


; a =. 
=~ 


SEPARATION BEFORE 1865 


and regarded as colored children by the community where- 
in they resided, should not be, as of right, entitled to ad- 
mission into white schools.2* In 1841, it had been held 
that a youth of Negro, Indian, and white blood, but of 
more than half white blood, was entitled to the benefit of 
the school fund. 

In Indiana,** in 1850, the public school law provided 
for a tax levy for the support of the schools, but omitted “ all 
Negroes and mulattoes ” from the tax list. Some colored 
children applied for admission, not as beneficiaries of the 
public school fund, but offering to pay their own tuition. 
The court *° of that State held that they could not be re- 
ceived if the resident parents of white children attending or 
desiring to attend the school objected, saying: “ This [the 
exclusion of the colored children] has not been done be- 
cause they do not need education, nor because their wealth 
was such as to render aid undesirable, but because black 
children were deemed unfit associates of white, as school 
companions. Now, surely, this reason operates with equal 
force against such children attending the schools at their 
own, as at the public expense.” 

In the case of Roberts v. The City of Boston,?* which 
was argued before the Supreme Court of Massachusetts 
in 1849, in which Charles Sumner was counsel for the 
plaintiff, the court gives the following interesting infor- 
mation: “ The colored population of Boston constitute less 
than one sixty-second part of the entire population of the 


city. For half a century, separate schools have been -kept. in 


in Boston for colored children, and the primary school for 

colored children in Belknap street was established in 1820, 

and has been kept there ever since. The teachers of this 
167 


SEPARATION OF RACES IN SCHOOLS 


school have the same compensation and qualifications as in 
other like schools in the city. f Schools for colored children 
were originally established at the request of colored citi- 
zens, whose children could not attend the public schools, on 
account of the prejudice then existing against them. . 

“In 1846, George Putnam and other colored citizens 
of Boston petitioned the primary school committee that 
exclusive schools for colored children might be abolished, 
and the committee, on the 22d of June, 1846, adopted the 
report of a sub-committee, and a resolution appended 
thereto, which was in the following words: 

“* Resolved, that in the opinion of this board, the con- 
tinuance of the separate schools for colored children, and 
the regular attendance of all such children upon the school, 
is not only legal and just, but is best adapted to promote 
the education of that class of our population.’ ” 

At the time of this case, there were one’ hundred and 
sixty primary schools in Boston, of which two were set 
apart for colored children. The facts of the case were 
these: A colored child applied for admission to a white 
school on the ground that the colored primary school was 
one-fifth of a mile farther from her home. The general 
school committee refused her admission, and the colored 
girl, through her father, sued the city of Boston. The 
Supreme Court upheld the power of the committee to pro- 
vide separate schools for colored children and prohibit 
their attendance at other schools. The court also said: “ It 
is urged, that this maintenance of separate schools tends 
to deepen and perpetuate the odious distinction of caste, 
founded in a deep-rooted prejudice in public opinion. This 
prejudice, if it exists, is not created by law, and probably 

168 


SEPARATION BEFORE 1865 


cannot be changed by law. Whether this distinction and, 
prejudice, existing in the opinion and feelings of the com- 
munity, would not be as effectually fostered by compelling 
colored and white children to associate together in the same 
schools, may well be doubted; at all events, it is a fair and 
proper question for the committee to consider and decide 
upon, having in view the best interests of both classes of 
children placed under their superintendence, and we cannot 
say, that their decision upon it is not founded on just 
grounds of reason and experience, and in the results of a 
discriminating and honest judgment.” This line of argu- 
ment is familiar to those who have studied the decisions 
of Southern courts upon the separation of the races in 
schools, in public conveyances, hotels, theatres, and other 
public places. 

The attitude of the courts and legislatures of Indiana, 
Ohio, and Massachusetts, not one of which is a Southern 
State, toward the association of white and colored school 
children shows that there was ample precedent for the laws 
of the postbellum period. It is probable that a careful 
examination of the annual statutes of the other States be- 
fore 1865 would reveal that separation was required in 
them also; that is, where any provision at all was made 
for the public instruction of Negroes. For instance, the 
law in Delaware ?" in 1852 was that the public school should 
be free to all white children of the district over five years 
old. The inference to be drawn is that colored children 
were excluded. 


169 


SEPARATION OF RACES IN SCHOOLS 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


(a) In South 


It is a matter of general knowledge that white and col- 
ored children are not permitted to attend the same public 
schools in the South. The separation is required both by 
State Constitutions and statutes. 

The Constitutions of Alabama of 1875 °° and 1901 ”° 
provide for a system of public schools, but add that sep- 
arate schools must be maintained for white and colored 
children. The laws *° of 1868 have this provision: “ In 
no case shall it be lawful to unite in one school both col- 
ored and white children, unless it be by the unanimous 
consent of the parents and guardians of such children; but 
said trustees shall in all other cases provide separate 
schools for both white and colored children.” The separa- 
tion is also required in the laws of 1878 *1 and 1884.*? 

Arkansas has no constitutional provision as to separa- 
tion, but an act ** of 1867 reads: “ No Negro or mulatto 
shall be permitted to attend any public school in this State, 
except such schools as may be established exclusively for 
colored persons.” And a statute of 1873 ** declares that 
the board of education must provide separate schools. 

The Constitution *° of Florida of 1887 provides that 
white and colored children shall not be taught in the same 
school, but that impartial provision shall be made for both. 
A statute °° of 1895, which will be considered later, makes 
it a penal offence to educate white and Negro children in 
the same schools, whether public or private or parochial. 

Under a Georgia statute *7 of 1866, any free white citi- 


_ 


zen between the ages of six and twenty-one years and any. 


170 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


disabled and indigent soldier of the State under the age 
of thirty might have instruction in the schools free of 
charge. This would seem to leave out the colored children. 
But the Constitution ** of 1877 requires separate schools ; 
so do the laws of 1872.°° 

The laws of Kentucky *® of 1870 provided that it 
should be the duty of the trustees of the common schools 
of that State to invite and encourage indigent white chil- 
dren in the district to attend the school, and to inform 
them and their parents that such was their right for which 
the State paid, though they themselves might contribute 
toward paying the expenses of the school. The annual re- 
port of the trustees must always show that this duty had 
been performed; and no arrangement should be made for 
the benefit of some individuals of this description to the 
exclusion of others. Again, apparently no provision was 
made for the colored children, but the Constitution *! of 
1891 declares that in the distribution of the school fund 
no distinction shall be made on account of race or color, 
but that separate schools must be maintained. The stat- 
ute 4? of 1904, under which the Berea College case arose, 
applies to both public and private schools and requires a 
separation of the races in both. | 

The government of Louisiana was early in the hands 
of the Reconstructionists, as its statutes show. The Con- 
stitution 4 of 1868 said: “There shall be no separate 
schools or institutions of learning established exclusively 
for any race by the State of Louisiana.” A separation of 
the races in schools had been required by the Constitutions 
of 1845 *# and 1852,4° which makes this provision of the 
Constitution of 1868 all the more significant. ‘In 1871 
ial 


SEPARATION OF RACES IN SCHOOLS 


provision was made for an institution for the instruction 
of the blind, and an industrial home for the blind at Baton 
Rouge. The statute *® relative to these concluded thus: 
“. .. no part of this act shall be construed so as to de- 
prive any person on account of race or color of the priv- 
ilege of admittance to the institution.” A law ** of 1875 
which established an agricultural and mechanical college 
provided that there should be no discrimination of race or 
color in the admission, management, or discipline of the 
institution. The Constitution of 1879 did not expressly 
prohibit the separation of the races in schools, as that of 
1868 had done, but on the other hand it did not require 
separation. It seems, rather, to have left the matter in the 
hands of the legislature. The first reference made to sep- 
arate schools was in 1880, when a university was estab- 


lished for the education of persons of color, called the 


Southern University, four of the twelve trustees of which 
were to be Negroes.*® Finally, the Constitution *® of 1898 
requires the general assembly to establish free public 
schools for the white and colored races. 

A Maryland statute *® of 1870 declared that all the 
taxes paid for school purposes by the colored people in any 
county or in the city of Baltimore, together with donations 
for that purpose, should be set aside for maintaining 
schools for colored children. ‘The school commissioners 
were given power to make further appropriations as they 
should deem proper to assist the colored schools. A law ** 
of 1872 provided that the school commissioners should 
establish one or more public schools in each election dis- 
trict for colored children, which must be kept open as long 


as the other public schools of the county were kept open. 4 


172 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


They are subject to the same laws and must furnish in- 
struction in the same branches as the white schools. The 
taxes paid for school purposes by colored persons must be 
devoted to the maintenance of colored schools.’ This is 
the Maryland law,°? in substance, as it exists at present, 
except that a separate school does not have to be provided 
in each election district unless the colored population in 
that district warrants the board in establishing a colored 
school. Where there are not enough Negroes in a district 
to have a school of their own, presumably, they go to the 
colored schools in neighboring districts. 

As early as 1878 a statute of Mississippi ®* provided 
that schools should be arranged in each county so as to 
afford ample free school facilities for all educable youths 
in the county, prohibiting the teaching of white and col- 
ored pupils in the same school-house, and the Constitu- 
tion ** of 1890 reiterated this requirement of separation. 
The county school boards are given power to locate one or 
more schools for Indians in counties where there are 
enough Indians to form a school.*® 

Missouri seems not to have lost an opportunity to 
express its belief in separate schools for the races. The 
Constitution °° of 1865 made that requirement, adding that 
the school fund must be appropriated in proportion to the 
number of children without regard to color. Such sep- 
aration is required by the laws of 1865,°7 of 1868,°° of 
1869,°° by the Constitution of 1875,® and by a law of 
1889,*' which last made it unlawful for colored children 
to attend a white school, or white children, a colored school. 

The Constitution of North Carolina ** of 1875 declares 
that “the children of the white and the children of the 

173 


SEPARATION OF RACES IN SCHOOLS 


colored shall be taught in separate public schools, but there 
shall be no discrimination made in favor of, or to the preju- 
dice of either race.” According to the statute ®* of 1901, 
a child descended from a Negro to the third generation 
inclusive should not attend a white school. This was 
amended ® in 1903 to the effect that no child with Negro 
blood in his veins, “however remote the strain,” shall 
attend a school for the white race. The present statute ® 
also provides that the descendants of Croatan Indians now 
living in Robeson and Richmond counties shall have sep- 
arate schools for their children. It will be remembered 
that it is the Croatan Indians who are prohibited from 
intermarrying with Negroes. 

The Territory of Oklahoma ** had the following pe- 
culiar arrangement for separate schools till 1901: In each 
county an election was held every three years ‘at which 
all the qualified school electors could vote for or against 
the maintenance of separate schools in that county. If a 
' majority voted against separation, then the white and col- 
ored children might attend the same school ; but if a major- 
ity voted for separation separate schools had to be pro- 
vided. In counties which separate schools were voted in 
the schools for whites and blacks had to be equal in length 
of terms and in facilities. Any failure to comply with the 
law rendered the act for establishing separate schools void, 
and immediately the schools were opened to both races. 
In 1901 ® separate schools were required all over the Terri- 
tory. In case the children of one race in a district did 
not exceed ten, they were to be transferred to a school for 
their race in another district instead of a separate school 
being maintained for them, provided the distance was not 

174 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


over two miles and a half. The white and colored schools 
were to be furnished with the same kind of furniture and 
equipment. No white teacher should teach in a colored 
school and vice versa. The Constitution ** of the State of 
Oklahoma, adopted September 17, 1907, provides: “ Sep- 
arate schools for white and colored children, with like ac- 
commodation, shall be provided by the legislature and 
impartially maintained. The term ‘colored children,’ as 
used in this section, shall be construed to mean children 
of African descent. The term ‘ white children’ shall in- 
clude all other children.” An Oklahoma statute ® of 1907 
requires complete separation of the races in schools, with 
impartial facilities for both races. By “ colored children,” 
it means those that have any “ quantum of Negro blood.” 
The teacher who knowingly and willingly permits a child 
of one race to be taught in a school for another race is 
guilty of a misdemeanor, and may be punished by a fine 
of between ten and a hundred dollars and, in addition, 
may have his certificate cancelled and be unable to secure 
another for a year. ‘The separation applies to private 
schools and colleges as well as public schools. 

The South Carolina government was, like that of 
Louisiana, early under Reconstruction. The Constitu- 
tion 7 of 1868 provided that “all the public schools, col- 
leges and universities of this State, supported in whole or 
in part by the public school fund, should be free and open 
to all the children and youths of that State, without regard 
to race or color. In fact, the University of South Caro- 
lina was open to Negroes directly after the War.™* But 
the Constitution "? of 1895 requires separate schools, and 
adds that “no child of either race shall ever be permitted 

175 


SEPARATION OF RACES IN SCHOOLS 


to attend a school provided for children of the other race.” 
The Negro public schools of the city of Charleston are 
taught by white people, mostly Southern-born white people. 

Tennessee, by its laws ™ of 1866, by its Constitution ™ 
of 1870, and by its laws ** of 1873 requires separate public 
schools for the white and colored children. A statute ‘® 
of 1901 prohibits the co-education of the white and col- 
ored races in private schools. 

The Texas Constitution ™ of 1876 provided for sep- 
arate schools and impartial accommodations for both races. 
A school-house constructed in part by voluntary subscrip- 
tion by colored parents and guardians and for a colored 
school community shall not be used without their consent 
for the education of white children, and vice versa.** The 
separate school requirement was repeated in the laws of 
1884,"° 1893,°° and 1895.8 The Texas provision is that 
a school which receives both white and colored pupils shall 
not receive any of the public school fund, which amounts 
to saying that it is not unlawful to educate white and col- 
ored children together in private schools. 

The Constitution of Virginia of 1870 did not declare — 
that the races must be separated in schools. But statutes — 
of 1882 ** and 1896 §* provide that white and colored per- 
sons shall not be taught in the same school but in separate 
schools, under the same general regulations as to manage- 
ment, usefulness, and efficiency. ' The Virginia Constitu- 
tion ** of 1902 has the terse statement that white and col- 
ored children shall not be taught in the same school. 


176 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


(b) In States Outside of South 


Besides the Southern States, which have just been con- 
sidered, there are other States which require or permit a 
separation of the races in schools. The separation of the 
white and Japanese children in the public schools of San 
Francisco has already been discussed. ‘That was only a 
part of the legislation of California. A statute *° enacted 
during the session of 1869-70 read: “‘ The education of 
children of African descent and Indian children shall be 
provided for in separate schools. Upon the written appli- 
cation of the parents or guardians of at least ten such chil- 
dren to the board of trustees or board of education, a sep- 
arate school shall be established for the education of such 
children; and the education of a less number may be pro- 
vided for by the trustees in separate schools in any other 
manner.” In 1874 a Negro child was refused admission 
to a white school in that State. In a test case which arose 
the constitutionality of the statute was supported, the 
court ** being of opinion that the statute did not violate 
the Fourteenth Amendment if appropriate schools for col- 
ored children were maintained. But, it added, unless such 
separate schools are actually maintained, colored children 
must be admitted to the regular public schools along with 
the white children. This latter ruling became part of a 
statute of 1880. Prior to 1880 the law had been that 
“every school, unless otherwise provided by law, must be 
open for the admission of all white children... .” This 
was amended in 1880%7 by the omission of the word 
_“ white” and by repealing the sections providing for Negro 
and Indian schools. On the strength of this amendment, 

13 La, 


SEPARATION OF RACES IN SCHOOLS 


a Negro, upon being refused admission to the white schools, 
brought suit,*® and it was held that, as the law stood, col- 
ored children had equal rights with white children to ad- 
mission to any public school, even though separate schools 
were maintained. The court said: “The whole policy of 
the legislative department of the government upon this 
matter is easily gathered from the course of legislation 
shown therein; and there can be no doubt but that it was 
never intended that, as a matter of classification of pupils, 
the right to establish separate schools for children of Afri- 
can descent, and thereby to exclude them from white schools 

. should be given to such boards [of education].” It 
was earlier, in 1872, that the provision for separate schools 
for Mongolians was made. The law of California seems 
now to be that Negro children may attend the same schools 
as whites, but Japanese, Chinese, and Korean children 
must go to separate schools if the board of education sees 
fit to provide them. | 

The legislature of Delaware,8* in 1881, appropriated 
two thousand four hundred dollars annually for the educa- 
tion of colored children. In 1889 three colored schools °° 
were incorporated and placed in control of boards of trus- 
tees elected by the voters of the district. These incorpo- 
rated schools ®t as such were abolished in 1893, and after 
that they were placed under the supervision of the regular 
county superintendent just as the other public schools. 
The same State,®? in 1898, provided for the establishment 
of separate kindergartens. Thus, Delaware is as strict as 
the Southern States in requiring separate schools for the 
races. 

Although the Illinois statutes ** clearly state that any. 

178 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


school officer who excludes from a public school any child 
on account of color shall be fined from five dollars to one 
hundred dollars for each offence, and prohibits school direc- 
tors and officers from excluding, directly or indirectly, chil- 
dren on account of color, still the numerous cases which 
have arisen involving the point show that the school ofti- 
cers have not always been in thorough agreement with 
the law. 

In 1874 the school directors of McLean County, Illinois, 
erected a separate school building, twelve by fourteen feet, 
for the exclusive purpose of educating the three or four 
colored children in the district therein. It was admitted 
that there was plenty of room for them in the regular 
school building. One of the taxpayers of the district peti- 
tioned for an injunction against the building of the house, 
but it was completed before any decision was rendered. In 
a case which arose later, the court ** held that the school 
directors had no right to make such a discrimination 
against Negroes, and that any taxpayer might object. In 
1882 the board of education of Quincy, Illinois, divided the 
city into eight districts and set apart one school .for Ne- 
groes. A case arising over this division and segregation, 
the court *° ruled that, in the absence of State legislation, 
the board had no power to establish separate schools for 
Negroes. In 1886 the school board of Upper Alton passed 
a resolution excluding colored children from the white 
school unless they had reached the high school grade. A 
Negro, whose children below high school grade were re- 
fused admission to the white school, brought suit, and the 
court °® held that the school board had no power to sep- 
arate the children on account of color. In 1899 the com- 

179 


SEPARATION OF RACES IN SCHOOLS 


mon council of Alton established a schoo] for Negroes, but 
the court °? held that this involved an illegal discrimina- 
tion against them. The Associated Press report °* of No- 
vember 28, 1906, had the following statement: “ Hast St. 
Louis, Ill., Nov. 28, 1906—A large brick building at 1,400 
Missouri avenue, which was leased last week by the Board 
of Education for a Negro school, was destroyed by fire 
to-day, and there is evidence that prejudice against the 
establishment of a school for Negroes caused the building 
to be set on fire. Late last night the building was discov- 
ered to be on fire, but prompt action saved it. The fire- 
men found rags soaked in oil on the second floor hallway. 
The destruction of the building to-day makes the second 
building leased for a Negro school that has been burned 
within the last two weeks.” The latest Illinois case on the 
subject is that of April 23, 1908, The People v. The Mayor, 
etc., of Alton.®°® A Negro’s children were excluded from 
the public school most convenient to them and directed 
to a colored school less convenient. He petitioned for a 
writ of mandamus against the mayor and common council 
to compel them to admit his children to the most con- 
venient school, and after the case had been tried seven 
times by juries in the circuit court, the writ was finally 
granted by the Supreme Court. Although all of these 
cases were decided against race separation they show that 
there is still an appreciable feeling in Illinois against the 
white and colored children being taught in the same 
schools. The trouble at Alton is not yet over. After a . 
fourteen years’ fight the Negroes won, as has been seen, be- 
fore the Supreme Court of the State. But when the Negro 
children applied for admission to the public schools, they — 

180 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


were again refused. Before the schools\were opened for 
the session of 1908-09, many of the Negroes were visited 
and induced to send their children to the four Negro 
schools built in Alton. But forty other Negroes filed a 
petition for a writ of mandamus against the mayor and 
council of Alton seeking to have them answer why they 
refused to obey the mandate of the Supreme Court of 
the State.?%° 

A statute *°t of Indiana of 1869 required the trustees 
of schools to organize separate but equal schools for 
Negroes. If there were not enough Negroes in the district 
for a school, two or more districts might be consolidated 
for that purpose. If there were not enough within a rea- 
sonable distance, then the trustees might provide such 
other means of education of colored children as would em- 
ploy their proportion of the school fund to the best advan- 
tage. A case’? testing the constitutionality of this law, 
which arose in 1874, is one of the most exhaustive cases 
on the subject. The father of Negro children applied for 
a mandate to compel the admission of them to white 
schools. The court held that the separation of the races 
in schools is not in violation of the Federal or the State 
Constitution. The common schools, it was said, are based 
upon State legislation, are domestic institutions, and, as 
such, subject to the exclusive é¢ontrol of the constituted 
authorities of the State. The Federal Constitution does 
not provide for any general system of education to be con- 
ducted and controlled by the national government, nor 
does it vest in Congress any power to exercise a general or 
special supervision over the State on the subject of educa- 
tion. Under the Constitution of Indiana the common 

181 


SEPARATION OF RACES IN SCHOOLS 


school system must be general, uniform, and equally open 
to all, but uniformity will be secured where all schools of 
the same grade have the same system of government and 
discipline, the same branches of learning taught, and the 
same qualifications for admission. The court said: “In 
our opinion the classification of scholars on the basis of 
race or color, and their education in separate schools, in- 
volve questions of domestic policy which are within the 
legislative discretion and control, and do not amount to 
an exclusion of either class . . . there would be as much 
lawful reason for complaint by one scholar in the same 
school that he could not occupy the seat of another scholar 
therein at the same time the latter occupied it, or by schol- 
ars in different classes in the same school, that they were 
not placed in the same class, or by scholars in different 
schools, that they were not all placed in the same school, as 
there is that black and white children are placed in distinct 
classes and taught in separate schools.” 

In 187%, the Indiana law of 1869 was amended * so 
that the school directors might (not must) organize sepa- 
rate schools for the races. In case a colored school was 
not provided, the colored children should be allowed to 
attend the regular white school. When the colored child 
had reached a grade higher than that taught in the colored 
school, he must be admitted to the regular high school, and 
no distinction therein should be made on account of race 
or color. In 1882, there were only about six Negro chil- 
dren in a certain district, and the trustees were indicted 
for not establishing a separate school for them. The 
court ?°* ruled that it was impracticable to maintain a 
separate school for so small a number. In 1883, a Negro 

182 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


pupil brought suit on the ground that he was not admitted 
to the white high school, under the law of 1877, but he 
did not show that he had passed the required examination. 
The court *°° held that the discretion as to the competency 
of the child is a matter for the board of education, not 
the court. 

The laws of Iowa have not since 1865 required or per- 
mitted a separation of the races in schools. In 1868, a 
Negro girl, denied admission to the graded schools of Mus- 
catine, brought suit, and the court 1° gave relief, saying 
that the school directors could not require Negroes to at- 
tend separate schools; that if separate schools for Negroes 
are prescribed, the same might as well be done for German, 
Irish, and French children. The same principle has been 
affirmed in subsequent decisions which show that there 
have been instances in that State of school boards trying 
to separate the races.1°7 

By the statues °° of Kansas of 1868 the boards of edu- 
cation of cities of the first class—that is, cities of over 
150,000 inhabitants—had the “power to organize and 
maintain separate schools for the education of white and 
colored children.” This power was omitted in a revision 
of the school law 1° in 1876, and consequently repealed by 
implication. But in 1879 a statute *° was passed amend- 
ing the school law, which revived the power to separate the 
races in cities of the first class “ except in the high school, 
where no discrimination shall be made on account of 
color.” The constitutionality of this statute was upheld 
by the Supreme Court '™! of Kansas in 1903, and again in 
1909. The State has not given this power of separation 
to cities of the second class, so the courts 11” have held that, 

183 


SEPARATION OF RACES IN SCHOOLS 


except in cities of the first class, the colored children must 
be admitted to the schools along with the white children. 
The Superintendent of Public Schools of Kansas,'* in 
August, 1906, said: “There is a movement in Kansas 
looking toward the segregation of the races in the public 
schools, where the per cent. of colored population will war- 
rant the separation. 

A law*** of Nevada of 1865 excluded Negroes, Mon- 
golians, and Indians from the public schools, and _ pre- 
scribed as a punishment to the school opening its doors to 
all races a withdrawal of its share of the public school fund. 
The school officials might, however, if they deemed it ad- 
visable, establish a separate school for the children of 
Negroes, Mongolians, and Indians, to be supported out of 
the public school fund. In 1872 it was held **® that a 
mandamus would lie compelling trustees to admit colored 
persons to the public schools where separate schools were 
not provided for such persons. No subsequent reference to 
the subject appears in the statutes or reports, so it may 
be assumed that separate schools no longer exist in 
Nevada. 

A statute 11° of New Jersey of 1881 made it unlawful 
to exclude anyone from the public school on account of 
“religion, nationality, or color.” The town of Burlington 
had four public schools, one of which had been set apart 
for Negroes. A Negro petitioned for a writ of mandamus 
to compel the trustees to admit his children to the white 
schools, and the court ‘**? issued the writ. About four 
years ago the public schools of East Orange, New Jersey, 
adopted the policy of teaching the Negro pupils in sepa- 
rate classes; but it was soon abandoned because, the school 

184 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


authorities said, “it seemed like going back to old 
ideas.” 1*8 

The city of Buffalo, New York, under a provision of 
its charter, established separate schools for Negroes, and 
this action was upheld by the court +’ on the ground that 
the right to attend common schools is a legislative grant 
and not a constitutional guarantee. ‘The city of Albany 
also set apart one school for Negroes, and this was held ?*° 
constitutional in 1872. And in 1883, the Supreme Court 1*4 
of that State held that, if separate schools are provided 
for colored children, they may be excluded from the white 
schools. In 1899, the same was held ?2* for the Borough 
of Queens. These decisions were under the law of 1864,1?° 
reénacted in 1894,1** which gave power to the school au- 
thorities of cities and incorporated villages, when they 
deemed it expedient, to establish separate schools. But 
this law was repealed in 1900,'*° and the present law reads: 
“No person shall be refused admission to or be excluded 
from any public school in the State of New York on ac- 
count of race or color.” 

An Ohio statute 7?* of 1878 gave the boards of educa- 
tion discretionary power to establish separate schools for 
Negroes. This law was repealed in 1887,1*7 and thereafter 
all public schools were open to colored children.??® 

In 1869, persons of color were not admitted to the sub- 
district schools of Pittsburg, Pennsylvania,’*® but this law 
was repealed in 1872.1°° An earlier statute of 1854 had 
provided for separate schools for Negroes where there were 
more than twenty in the district. The school directors of 
Wilkesbarre had united two districts, each having less 
than twenty colored children, and put up a school building 

185 


SEPARATION OF RACES IN SCHOOLS 


for Negroes; but the court *** held that this was in viola- 
tion of the law of 1854. This law was repealed in 1881,1*” 
and it was thereafter unlawful to make any distinction 
whatever on account of race or color. The next year, it 
was held 1** that the school directors could not keep open 
schools for Negroes exclusively. 

A West Virginia law *** of 1865 required the boards 
of education to establish separate schools for Negroes 
where there were more than thirty children of that race 
in the district. But if the average daily attendance was 
less than fifteen for a month, the school should be discon- 
tinued for any period not exceeding six months. If there 
were less than thirty children in the district or the attend- 
ance was less than fifteen, the money should be reserved 
and used for colored education as the board thought best. 
A statute 18° of 1871 and the Constitution 1° of 1872 pro- 
vided that white and colored persons should not be taught 
together. A separate school for Negroes must be estab- 
lished when the number in the district exceeds twenty- 
five. If less, the trustees of two or more dastricts may es- 
tablish a joint school. The Supreme Court 1°" of that State 
has held that the constitutional provision requiring sepa- | 
rate schools does not violate the Fourteenth Amendment, 
but that the terms of the schools of both races must be of 
the same length. Thus, West Virginia is as strict as Vir- 
ginia or any Southern State in separating the races in 
schools. 

Wyoming has the following statute 18%: “ When there 
are fifteen or more colored children within any school 
district, the board of directors thereof, with the approval 
of the county superintendent of schools, may provide 

186 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


a separate school for the instruction of such colored 
children.” 

The statutes 1%° of Arizona, until 1909, declared that 
no child should be refused admission to any public school 
on account of race or color. Last year, however, the school 
law of that Territory was amended **° so as to give the 
board of trustees of school districts power, when they deem 
it advisable, to segregate pupils of the African from pupils 
of the white race and to provide all accommodations made 
necessary by such segregation, but the power to segregate 
shall be exercised only where the number of pupils of the 
African race shall exceed eight in any school district. This 
amendment was passed over the Governor’s veto by a two- 
thirds’ vote of the legislature. | 

The Constitutions of Colorado** of 1876 and of 
Idaho **? of 1889 provide that no distinction or classifica- 
tion of pupils shall be made on account of race or color, 
and the judicial decisions of those States do not show any 
attempts by the school boards to draw color lines. 

Separate schools were abolished by law in Massachu- 
setts in 1857.14 The present statute *** declares that no 
ehild shall be excluded from a public school of any city 
or town on account of race or color. In practice, the mat- 
ter is not entirely at rest in Massachusetts. 

The law 14° of Michigan prohibits the segregation of 
the races-in schools. Because of objections made by white 
students, two Negroes,!#* in 1908, were refused admission 
to the Grand Rapids, Michigan, Medical College, a private 
institution. The Negroes appealed to the State circuit 
court, which issued a writ of mandamus compelling the 
school to admit them. When this was granted and they 

187 


SEPARATION OF RACES IN SCHOOLS 


were accordingly admitted, thirty-four members of the 
junior class of the school “ struck,” and the authorities sus- 
pended the class for a time. The Supreme Court **’ of 
Michigan later reversed the order granting the writ of 
mandamus, saying that a private institution of learning, 
though incorporated, has a right to say whom it will receive. 
A statute 48 of Minnesota declares that a district shall 
not classify its pupils with reference to race or color, nor 
separate them into different schools or departments upon 
such grounds. The punishment for violation of this law 
by a district is a forfeiture of its share of the public school 
fund so long as the classification or separation continues. 
The Territory of New Mexico **° makes it a misdemeanor 
for a teacher or school director to exclude any child on 
account of race or nationality, under penalty of a fine from 
fifty dollars to one hundred dollars and three months im- 
prisonment, and being forever barred from teaching school 
or holding any office of profit or honor in the Territory. 


The separation of the races in public schools is required 
by the Constitutions of Alabama, Florida, Georgia, Ken- 
tucky, Louisiana, Mississippi, North Carolina, Oklahoma, 
South Carolina, Tennessee, 'Texas, Virginia, and West Vir- 
ginia. Complete separation is required by statute in all 
of the above-named States and, besides those, also in Ar- 
kansas, Maryland, and Delaware. A discretionary power 
is given to the school boards to establish separate schools 
in Arizona; in Indiana; in California, ‘as to schools for 
Indians, Chinese, and Mongolians; in Kansas, in cities of — 
over 150,000 inhabitants; and in Wyoming, in districts 
having fifteen or more colored pupils. The following 

188 


PRESENT EXTENT OF SEPARATION IN PUBLIC SCHOOLS 


States that once had separate schools now prohibit them: 
Illinois, Massachusetts, Nevada, New Jersey, New York, 
Ohio, and Pennsylvania. In addition to these, separate 
schools are not allowed in Colorado, Idaho, Iowa, Michi- 
gan, Minnesota, New Mexico, and Rhode Island. There 
are other States which have never seen fit to make any 
mention one way or the other of race distinctions in 
schools, either in statutes or court reports; so one is war- 
ranted in inferring that the schools are open to all. They 
are Connecticut, Maine, Montana, New Hampshire, North 
Dakota, Oregon, South Dakota, Utah, Vermont, Wiscon- . 
sin, and Washington. 

As has already been said, public education is distinctly 
a State function. The Federal government, in the main, 
has not undertaken to have anything to do with it, but 
Congress, by its exclusive jurisdiction, has supreme control 
over the public schools of the District of Columbia, and 
the provisions that it has made there for the separation of 
the races show in an interesting way the attitude of the 
national government upon the subject. A statute *°° of 
1864 reads: “ That any white resident of said county shall 
be privileged to place his or her child or ward at any one 
of the schools provided for the education of white children 
in said county he or she may think proper to select, with 
the consent of the trustees of both districts; and any col- 
ored resident shall have the same rights with respect to 
colored schools. 

“That it shall be the duty of said commissioners to 
_ provide suitable and convenient houses or rooms for hold- 
ing schools for colored children... .” The commis- 
sioner might impose a tax of fifty cents per capita upon 

189 


SEPARATION OF RACES IN SCHOOLS 


the patrons of the school to aid in its support, but no child 
should be excluded because its parents or guardians could 
not pay the tax. The school fund was to be divided in 
proportion to the number of school children, regardless of 
race. 

In 1890 an increase of the Federal appropriation *** to 
schools was accompanied with the following proviso: 
“That no money shall be paid out under this act to any 
State or Territory for the support or maintenance of a 
college where a distinction of race or color is made on the 
admission of students, but the establishment and main- 
tenance of such colleges separately for white and colored 
students shall be held to be a compliance with the pro- 
visions of the act, if the funds received in such State or 
territory be equitably divided as hereinafter set forth.” 


SEPARATION IN PRIVATE SCHOOLS 


Thus far, except in the matter of Berea College, the 
separation of the races in private schools only has been 
considered. Legislation as to private schools is compar- 
atively meagre. A statute *? of Florida of 1895 makes it 
a penal offence to conduct a school of any grade—publie, 
private, or parochial—wherein white persons and Negroes 
are instructed or boarded within the same building, or 
taught in the same class, or at the same time by the same 
teacher. The punishment for violating the law by pat- 
ronizing or teaching in such a school is a fine of from 
one hundred and fifty to five hundred dollars, or im- 
prisonment from three to six months. A statute ?°* of 
Tennessee of 1901 makes it lawful for any school, acad- 

190 


SEPARATION IN PRIVATE SCHOOLS 


emy, or other place of learning to receive both white and 
colored pupils at the same time. It is unlawful for any 
teacher to allow them to attend the same school or to teach 
them together or to allow them to be taught together, under 
a penalty of fifty dollars for each offence and imprisonment 
from thirty days to six months. The most recent statute 
on the subject of private schools is that of Oklahoma in 
1908. It is plainly modeled after the Kentucky law of 
1904. Under the Oklahoma statute,?** it is unlawful for a 
person, corporation, or association of persons to maintain 
or operate any college, school, or institution where persons 
of the white and colored races are both received as pupils 
for instruction. The person, corporation, or association 
that operates a school in violation of the statute is guilty 
of a misdemeanor, and may be fined not less than one 
hundred nor more than five hundred dollars. Each day 
such a school is kept open is a separate offence. One who 
teaches in such a school is guilty of a misdemeanor and 
may be fined from ten to fifty dollars for each day. One 
who goes to such a school as a pupil may be fined from five 
to twenty dollars for each day. It is not unlawful, how- 
ever, for a private school to maintain a separate and dis- 
tinct branch thereof “in a different locality.” The Ken- 
tucky statute, it will be remembered, required the separate 
branch to be, at least, twenty-five miles from the main 
school. The Oklahoma legislature declared that it was 
necessary “for the immediate preservation of the pub- 
lic peace, health, and safety ” that this act take effect 
at once. 

Florida, Kentucky, Oklahoma, and Tennessee are the 
only States that expressly prohibit the teaching of white 

191 


SEPARATION OF RACES IN SCHOOLS 


and colored persons in the same private school. Other 
States—as Georgia and 'exas—declare that, if a school 
admits both races, it shall have none of the public school — 
fund, saying, by implication, that one may operate a school 
for both races if he will give up his claim to State aid. 
On the other hand, Minnesota has enacted a statute to the 
effect that, if a school refuses to admit pupils of both races, 
it shall have none of the public school fund, thus saying, 
by implication, that it is not unlawful to conduct a private 
school exclusively for one race. The recent decision of the 
Supreme Court of Michigan to the effect that a private 
school may exclude Negroes even though the law of the 
State requires public schools to be open to all, oe 
of race or color, has been considered. 


EQUALITY OF ACCOMMODATIONS 


ce 


In general, the 


23 


accommodations, advantages, and fa- 
cilities 
for white children, but the requirement has, in many cases, 
been loosely construed. It has been held in Missouri ?°° 


of schools for Negroes are to be equal to those 


and QOhio,'®* for instance, that it is not an unjust dis- 
crimination for the colored children to have to walk 
farther to school than the white children. The Supreme 
Court 4%” of Kansas in 1903 decided that uniformity of 
schools for white and colored children did not require 
equality of buildings. The court said: “True, for the ac- 
commodation of a numerous white population a much 
larger and more imposing school building is provided than 
that set apart for the few colored children in the district. 
This, however, is but an incidental matter, and necessarily 
192 


EQUALITY OF ACCOMMODATIONS 


unavoidable in the administration of any extended school 
system. School-houses cannot be identical in every respect ; 
but parents cannot, on this account, dictate the one their 
children shall attend.” 

The County Board of Education of Richmond County, 
Georgia, in 1880, established a high school for Negroes, 
but in 1897 it was discontinued for economic reasons, be- 
cause the money to educate fifty or sixty Negroes in the 
high school would give the rudiments of education to two 
hundred of the four hundred young Negroes in the county 
who were crowded out. It was understood that the school 
would be re-opened as soon as economic considerations per- 
mitted. A Negro brought suit against the board for dis- 
crimination against his race in that the white high school 
to which the Board made contributions had not been closed 
also. The Supreme Court of that State held *°* that the 
Board had the right to establish or discontinue high schools 
when the interests and convenience of the people require it. 
There were more white children of the high-school grade 
than colored; therefore, the court argued, the Board was 
justified in continuing the white high school. The case was 
appealed to the Supreme Court **® of the United States, 
which affirmed the decision of the State court. Mr. Jus- 
tice Harlan, delivering the opinion of the court, said: 
“ ... while all admit that the benefits and burdens of 
public taxation must be shared by the citizens without dis- 
crimination against any class on account of their race, 
the education of the people in the schools maintained by 
State taxation is a matter belonging to the respective 
States, and any interference on the part of the Federal 
authority with the management of such schools cannot be 

14 193 


SEPARATION OF RACES IN SCHOOLS 


justified except in the case of clear and unmistakable dis- 
regard of rights secured by the supreme law of the land.” 

In general, where separate schools are required, it is 
said that they must be equal for both races; but it has 
been held that it is not an unjust discrimination to build 
more imposing school-houses for the many white children 
than for the few colored children; to require the children 
of one race to walk farther to school than the other, or to 
maintain high schools for one race without doing so for the 
other. Only a very few States have escaped altogether the 
question of the separation of the races in schools. Even 
where the State statutes have declared point-blank by 
statute that there shall be no distinction on account of race 
or color, the suits that have arisen in those States show 
that the school boards have tried to evade the law. 


DIVISION OF PUBLIC SCHOOL FUND 


It is commonly believed that the Negro has had and 
is now getting much more than his share of the public 
school fund. It is said that the Negro is getting nearly 
half the money, while he is paying only a very small per- 
centage of the taxes. Thus, the following is the estimate 
of Mr. J. Y. Joyner, Superintendent of Public Instruction 
of North Carolina: “ Upon the most liberal estimate, it 
seems that in 1908 the Negroes received for the mainte- 
nance of their public schools in North Carolina about twice 
as much as they paid directly or indirectly for this pur- 
pose. I think that this is about in accordance with the 
experience and observation of those familiar with the ad- 
ministration of the public schools in North Carolina. My 

194 


DIVISION OF PUBLIC SCHOOL FUND 


own opinion is that the white people pay, directly or in- 
directly, for the education of the Negro more rather than 
less than one dollar for every dollar that the Negro pays, 
directly or indirectly for that purpose.” Mr. J. D. Eg- 
gleston, Jr., Superintendent of Public Instruction of Vir- 
ginia, estimates that the public school fund for Negroes in 
that State is $500,000, of which the Negro pays $87,000, 
or less than one-fifth.*®° 

There have been fitful efforts from time to time to di- 
vide the public school fund in proportion to the amount 
of taxes paid by each race. ‘The most recent and thorough- 
going effort ** to have the school fund so apportioned was 
made by Ex-Governor James K. Vardaman, of Mississippi. 
But his effort, like that of those before him, came to 
naught. The white taxpayers of the South have not shown 
any very evident desire to withdraw their financial aid 
from the colored public schools. But there has been 
enough legislation on different phases of the question 
of the apportionment of the school money to deserve 
attention. 

In Alabama,’ in 1896, all poll tax money paid by 
colored persons went to the support of colored schools, and 
all that paid by white persons, to the support of white 
schools. The present Code apparently does not require 
this separation of taxes; but in the provisions for special 
tax districts 1° for school purposes, the law provides that 
the amount paid by whites and blacks shall be kept sep- 
arate, presumably meaning that the funds arising from 
special taxation shall be apportioned according to the 
amount paid by each race. Though Delaware usually 
makes an annual appropriation for colored schools, never- 

195 


SEPARATION OF RACES IN SCHOOLS 


theless in 1875,1°* and again in 1887,'®© it provided for a 
tax of thirty cents on the hundred dollars upon the 
property of colored persons for the maintenance of colored 
schools. 

The legislation of Kentucky with regard to the raising 
and apportionment of its public school fund has been 
unique. In 1866,1® all capitation taxes paid by Negroes 
and, in addition, a tax of two dollars per capita upon 
Negroes went toward the support of their paupers and 
the education of their children. In 1869,'®’ a vote was 
taken upon the propriety of levying a tax of fifteen 
cents on the hundred dollars upon the property of white 
persons for the support of white schools exclusively. In 
1873,1°* a property tax of twenty cents on the hundred 
dollars and a poll tax of one dollar were levied upon 
Negroes of McCracken County for the maintenance of their 
schools. 'The same method of taxation was adopted for 
Bowling Green*®® and Catlettsburg*7 and Garrard 
County.*7* As to the last-mentioned place, there was a 
provision that in the county white and colored school- 
houses must be not less than a half mile apart, and in 
towns not less than eight hundred feet. In Bracken 
County *”? a special tax of twenty-five cents on the hun- 
dred dollars was levied upon the property of whites for 
their schools, not applying to Negroes at all. The con- 
stitutionality *”* of this law was upheld by the Supreme 
Court of Kentucky on the ground that whatever benefits 
the Negro is entitled to under the school system he receives 
as a citizen of Kentucky, not as a citizen of the United 
States. 

In 1874, the same State *"* provided for a uniform 

196 


DIVISION OF PUBLIC SCHOOL FUND 


system of schools for Negroes. ‘The sources of the revenue 
for the schools were (1) a tax of twenty cents on the 
hundred dollars upon the property of Negroes, (2) their 
poll taxes, (3) their dog taxes, (4) taxes on deeds, suits 
and licenses collected from colored persons, (5) fines, pen- 
alties, and forfeitures collected from them, (6) sums re- 
ceived from Congress, provided the apportionment to each 
colored child did not exceed that to each white child, and 
(7) gifts, donations, and grants. Colored school-houses 
must not be erected within one mile of a white school- 
house in the country and six hundred feet in towns. In 
1880, Owensboro 1*° was authorized to levy a tax of thirty 
cents on the hundred dollars and two dollars on the 
poll upon Negroes for colored schools, provided the Ne- 
groes voted to tax themselves for this purpose. This law 
was held ‘7° unconstitutional by the Federal district court 
in 1883, the court saying: “If taxes can be distributed 
according to color or race classification, no good reason 
why a division might not be made according to the amount 
paid by each taxpayer, and thus limit the benefits and dis- 
tribute the protection of the laws by a classification based. 
upon the wealth of the taxpayer. Such distribution would 
entirely ignore the spirit of our republican institutions and 
would not be the equal protection of the laws as under- 
stood by the people of the State at the time of the adoption 
of this (the Fourteenth) amendment.” The laws of Ken- 
tucky of 1874 were held ?”* unconstitutional in 1885. In 
1886, Elkton 178 was authorized to levy a tax of two dol- 
lars on the poll and ninety-five cents on the hundred 
dollars upon Negroes if they voted thus to tax themselves. 
Apparently the last act of legislation 17° with regard to the 
197 


SEPARATION OF RACES IN SCHOOLS 


school fund in Kentucky was in 1904, when provision was 
made for a system of graded schools in cities of the fourth 
class, but the property or polls of one race were not to be 
taxed for the support of the schools of the other. A recent 
Kentucky case has held *8° that, after the regular public 
school fund of the State has been apportioned among the 
districts in proportion to the number of children regard- 
less of race, then it is not improper for a district to supple- 
ment that fund by a tax on the property of white persons 
for the further support of white schools and upon the 
property of Negroes for their schools. Thus, it appears 
that Kentucky is honeycombed with the special tax dis- 
tricts wherein each race supports its own schools. Whether 
this arrangement is constitutional or not is still in doubt, 
as no square decision on the point has yet been rendered 
by the Supreme Court of the United States. 

For some years North Carolina has been exercising the 
principle of local, special taxation to supplement the gen- 
eral public school fund. In several instances, about 1886, 
the communities levied the tax only upon the whites for 
the benefit of white schools, but this was held 1*? unconsti- 
tutional by: the State Supreme Court, and the attempt to 
thus distinguish between the races does not appear to have 
been made since. The courts of Kentucky and North Caro- 
lina are in conflict, due to the differences in the constitu- 
tions of those States, on the question of special taxation 
by each race for its own schools. The local tax districts in 
North Carolina have recently been increasing at the rate 
of about two a day, but the tax is levied upon colored 
persons as well as white, and all the schools share the 
benefits. 

198 


NOTES 


The Constitution of Texas '*? of 1866 provided that 
all taxes collected from Negroes should go to maintain 
their public schools, and that it should be the duty of the 
legislature to encourage schools among these people. This 
provision, however, does not appear in the later Constitu- 
tion of Texas. 

Thus, one sees that, here and there, particularly in Ken- 
tucky, there are precedents for a division of the school 
fund in proportion to the taxes paid by each race, but 
there has not been any general movement in th? direction. 
One is justified in concluding that, although the South- 
ern States stand steadfastly for race separation in both 
public and private schools, they do not desire a division of 
the public school funds except in proportion to the number 
of children of school age. It is true that there have been 
some local legislative acts looking in that direction, and a 
few sporadic political movements to the same effect; nev- 
ertheless, the fact that the local legislation has not become 
general since the Negro has been practically eliminated 
from politics and that the political movements have met 
with such scanty popular support show that the people are 
satisfied with the present arrangement as to the division 
of the school fund. 


NOTES 


1 Laws of Ky., 1904, pp. 181-82. 
2 The Outlook, vol. 85, pp. 921-28. 
3 The Nation, vol. 79, pp. 389-90. 
494 S. W. 623 (1906). 
5 Berea College v. Com. of Ky., 1908, 211 U. S. 45. 
® Pol. Code, 1906, sec. 1662. 
199 


SEPARATION OF RACES IN SCHOOLS 


7 Laws of Calif., 1880; p. 88; 1885, p. 100; 1891, p. 160; 
1893, p. 2538; 1908, p. 86. See also Laws of Calif., 1869-70, 
p. 838; 1909, extra sess., p. 904. 

8 President Roosevelt’s Message to Congress, December 
18, 1906, with Secretary Metcalf’s Report. 

® The Outlook, vol. 86, pp. 246-52. 

AOA TEV Lares 

11 Harper's Weekly, vol. 51, p. 295; Current Literature, 
vol. 42, p. 237. — 

12 Raleigh, N. C., News and Observer, Feb. 13, 1909. 

13 Boston Hvening Transcript, Feb. 18; 1910. 

14 Tbid., Feb. 15, 1907, p. 8, col. 7. 

15 Laws of O., 1828-29, p. 73. 

16 Williams v. Directors of Sch. Dist. No. 6, 1884, 
Wright’s Rep. (O.) 578. 

17 Laws of O., 1847-48, pp. 81-83. 

18 Tbid., 1848-49, pp. 17-18. See Curwen’s Revised Stat., 
IT, pp. 1465-66. | 

19 Stewart v. Southard, 1848, 17 O. 402. 

20 State v. City of Cincinnati, 1860, 19 O. 178, at p. 196. 

21 Laws of O., 1852, p. 441. 

22 Van Camp v. Board of Education of Logan, 1859, 9 O. 
406.) 

23 Lane v. Baker, 1848, 12 O. 238. 

24 Revised Stat., 1848, p. 314. 

25 Lewis v. Henley, 1850, 2 Ind. 332. 

2659 Mass. (5 Cushing) 198 (1849). 

27 Revised Stat., 1852, p. 115. 

28 Art. XIII, sec. 1. 

29 Art. XIV, sec. 256. 

30 Laws of Ala., 1868, p. 148. 

31 Tbid., 1878, p. 136. 

82 Thid., 1884-85, p. 349. See Code, 1907, I, sec. 1757. 

200 


% 


NOTES 


33 Acts of Ark., 1866-67, p. 100. 

84 Tbid., 1873, p. 423. See Kirby’s Digest, 1904, secs. 7536 
and 7613. 

85 Art. XIT, sec. 12. 

36 Laws of Fla., 1895, pp. 96-97. See General Stat., 1906, 
Sec. 3810. 

37 Laws of Ga., 1866, p. 59. 

38 Art. VIII, see. 1. 

89 Laws of Ga., 1872, p. 69. See Code, 1895, I, sec. 1378. 

40 Laws, of Ky.) 1869-70, I, p. 127. 

41 Art. VI, sec. 187. 

42 Laws of Ky., 1904, pp. 181-82. See Statutes, 1909, 
secs. 5606-10. 

45 Title VII, ‘art. 135. 

44 Title VIL. 

45 Title: VILL. 

46 Laws of La., 1871, pp. 208-10. 

47 Tbid., 1875, pp. 50-52. 

48 Tbid., 1880, pp. 110-11. 

49 Art, 248. 

50 Laws of Md., 1870, pp. 555-56. 

51 Tbid., 1872, p. 650. See Laws of Md., 1874, p. 690. 

52 Pub. Gen. Laws, II, art. 77, secs. 124-27. 

53 Laws of Miss., 1878, p. 103. 

54 Sec, 207. 

55 Code, 1906, sec. 4562. 

56 Art. LX, sec. 2. 

57 Laws of Mo., 1864, p. 126. 

58 Tbid., 1868, p. 170. 

59 Thid., 1869, p. 86. 

60 Art. LX, sec. 2. 

61 Laws of Mo., 1889, p. 226. See Statutes, 1906, secs. 

- 9774-76. 
201 


SEPARATION OF RACES IN SCHOOLS 


62-Art. IX, sec. 2. 

63 Pub. Laws of N. C., 1901, p. 64. 

64 Tbid., 1908, p. 756. 

65 Revisal of 1905, II, sec. 4086. See Pell’s Revisal of 
1908, sec. 4086. 

66 Statutes, 1890, secs. 6464-72. 

67 Laws of Okla., 1901, pp. 205-10. 

68 Art. XIII, sec. 3. 

69 Laws of Okla., 1907-08, pp. 694-95. See Statutes, 1908, 
secs. 6551-56. 

70 Art. X, sec. 10. 

71 Booker T. Washington, “The Stick of the Negro,” 
1909, Doubleday, Page & Co., II, p. 38. 

72 Art. XI, sec. 7. See Laws of S. C. 1896, p. 171, and 
Code, 1902, I, sec. 1231. 

73 Laws of Tenn., 1865-66, p. 65. 

Th Art. Ai eee. 12. 

75 Laws of Tenn., 1873, p. 46. 

76 Thid., p. 9. See Shannon’s Code, 1896, sec. 1451, and 
Supplement, 1897-1903, p. 848. 

77 Art. VII, sec. 7. 

78 Laws of Texas, 1876, p. 209. 

79 Tbid., 1884, p. 40. 

80 Ibid., 1893, p. 198. 

81 [bid., 1895, p. 29. See Salyles’s Civil Statutes, II, art. 
3907, and Supplement, 1897-1906, pp. 421-22. 

82 Laws of Va., 1881-82, p. 37. 

83 Tbid., 1895-96, p. 352. 

84 Sec. 140. See Pollard’s Code, 1904, sec. 1492. 

85 Laws of Calif., 1869-70, pp. 838-39. 

86 Ward v. Flood, 1874, 48 Calif., 36. 

87 Deering’s Code and Statutes, I, secs. 1669-71. 

88 Wysinger v. Crookshank, 1890, 23 P. 54, 

202 


NOTES 


89 Laws of Del., 1879-81, p. 385. 

9° Tbid., 1887-89, pp. 650-51, 655, and 658. 

91 Tbid., 1891-98, p. 693. 

% Tbid., 1898-99, p. 193. See Del. Laws of 1852, as 
amended 1893, pp. 341 and 348. 

88 Statutes, 1896, ITI, p. 3730, sec. 292. 

®£ Chase v. Stephenson, 1874, 71 Ill. 383. 

®5 People v. Board of Education of Quincy, 1882, 101 Ill. 
308. 

86 People vy. Board of Education of Upper Alton, 1889, 
21 N. E. 187. 

87 People v. Mayor, ete. of City of Alton, 1899, 54 N. 
E. 421. 

98 Raleigh, N. C., News and Observer, Nov. 29, 1906. 

99 933 TI]. 542 (1908). 

100 Boston Hvening Transcript, Nov. 28, 1908, pt. 2, p. 9, 
col. 5. 

101 Laws of Ind., 1869, p. 41. 

102 Oory vy. Carter, 1874, 48 Ind. 327, at pp. 362-63. 

108 Laws of Ind., 1877, p. 124. 

104 State v. Grubbs, 1882, 85 Ind. 213. 

25 State v. Mitchell, 1883, 93 Ind. 303. 

106 Clark vy. Board of Sch. Dirs., 1868, 24 Ia. 266. 

107 Smith v. Dirs. of the Ind. Sch. of the Dist. of Keokuk, 
1875, 40 Ia. 518; Dove v. Ind. Sch. Dist. of Keokuk, 1875, 41 
Ta. 689. . 

108 General Stat., 1868, chap. 18, art. 5, sec. 75. 

109 Laws of Kan., 1876, p. 288. 

110 Tbad., 1879, p. 163. 

111 Reynolds v. Board of Education of Topeka, 1903, 72 P. 
274; Williams v. Board of Education of Parsons, 1909, 99 
PY 216; 

112 Board of Education y. Tinnon, 1881, 26 Kan. 1; Knox 

203 


SEPARATION OF RACES IN SCHOOLS 


v. Board of Education of Independence, 1891, 25 P. 616; 
Rowles v. Board of Education of Wichita, 1907, 91 P. 88. 

118 Letter from the Superintendent of Schools of Kansas 
to the Superintendent of Schools of North Carolina. Ra- 
leigh, N. C., News and Observer, Aug. 24, 1906. 

114 Laws of Nev., 1864-65, p. 426. 

115 State v. Duffy, 1872, 7 Nev. 342. 

116 Laws of N. J., 1881, p. 186. 

117 Pierce vy. Union Dist. Sch. Trustees, 1884, 46 N. J. L. 
(17 Vroom) 76. 

18 Raleigh, N. C., News and Observer, Feb. 18, 1906. 

119 Dallas v. Fosdick, 1869, 40 How. Prac. (N. Y.) 249. 

120 People v. Easton, 1872, 18 Abb. Prac. (N. 8S.) 159. 

121 People v. Gallagher, 1883, 93 N. Y. 488. 

122 People v. School Board of Borough of Queens, 1899, 61 
N.Y up. 38a. 

123 Laws of N. Y., 1864, p. 1281. 

124 Thid., 1894, II, p. 1288. 

126 This) (1900, 11, p./4178. 

126 Laws of O., 1878, p. 518. 

127 Pid.) 18914) Deno ae 

128 State v. Board of Education of Oxford, 1887, 2 O. Cir. 
Ct. Rep. 557. 

129 Laws of Pa., 1869, p. 160. 

180 Tbid., 1872, pp. 1048-49. 

181 Com. y. Williamson, 1878, 30 Legal Intelligencer, 406. 

132 Laws of Pa., 1881, p. 76. 

183 Kaine vy. Sch. Dirs., 1882, 101 Pa. S. 490. 

184 Laws of W. Va., 1865, p. 54 

185 J bid., 1871;.px 206». 1872-78, p. 391; 1881) ppe iets 
1901, pp. 159-60. 

136 Art. XII, sec. 8. 

137 Martin v. Board of Education of Morgan Co., 1896, 

204 


NOTES 


42 W. Va. 514; Williams v. Board of Education of Fairfax 
Dist., 1898, 45 W. Va. 199. 

188 Revised Stat., 1887, sec. 3947. 

189 Revised Stat., 1901, secs. 2179 and 2281. 

140 Laws of Ariz., 1909, pp. 171-72. 

141 Art. TX, sec. 8. 

142 Art. LX, sec. 6. 

143 Acts and Resolves of Mass., 1854-55, pp. 674-75. 

144 Revised Laws, 1902, I, p. 478. See Acts and Resolves 
of Mass., 1894, p. 609; 1898, p. 453. 

145 Compiled Laws, 1897, II, sec. 4683, p. 1478. 

146 Raleigh, N. C., News and Observer, Nov. 22, 1908. 

- 147 Booker v. Grand Rapids Medical College, 1909, 120 N. 
W. 589. 

148 Revised Laws, 1905, sec. 1403. 

149 Laws of N. M., 1901, p. 147. 

460U.S. Stat. L., 191, chap. 156, secs. 16-17. 

15196 U. S. Stat. L., 417-18, chap. 841, sec. 1. 

152 Laws of Fla., 1895, pp. 96-97. 

153 Laws of Tenn., 1901, p. 9. 

154 Laws of Okla., 1907-08, pp. 694-95. 

155 Lehew v. Brummell, 1891, 15 S. W. 765. 

156 State v. Board of Education of Cincinnati, 1876, 1 
Weekly Law. Bul. 190. 

157 Reynolds v. Board of Education of Topeka, 1903, 72 P. 
274, at p. 280. 

158 Board of Education of Richmond Co. v. Cummings, 
1898, 29 S. E. 488. 

159175 U. S. 528 (1899). 

160 Raleigh, N. O., News and Observer, Sept. 25 and Oct. 
10, 1909. See also The World’s Work, July, 1909. 

161 The International Year-book, 1907, p. 545. 

162 Code, 1896, secs. 3607-08. ‘i 

205 


SEPARATION OF RACES IN SCHOOLS 


168 Code, 1907, I, sec. 1858. 

164 Laws of Del., 1875, pp. 82-83. 

185 Tbid., 1887-89, pp. 147-48. 

166 Laws of Ky., 1867, pp. 94-95. 

167 Thid., 1869, p. 7. 

168 This, 1813. p.1009. 

169 Thid., p. 238. 

170 Thid.,; pp. 193-94. 

171 Thid., pp. 554-55. 

114 Tbid., adj. SC88.,) DD.i4 bid 

178 Marshall v. Donovan, 1874, 10 Bush (Ky.) 681. 

174 Laws of Ky., 1873-74, pp. 63-66. 

175 Tbid., local, 1879-80, I, pp. 257-59. 

176 Claybrook v. Owensboro, 1883, 16 Fed. 297, at p. 302. 

177 Dawson v. Lee, 1885, 83 Ky. 49. 

178 Laws of Ky., 1885-86, I, pp. 877-91. 

179 Tbid., 1904, pp. 129-31. 

180 Crosby v. City of Mayfield, 1909, 117 S. W. 316. 

181 Pruitt v. Gaston Co. Commissioners, 1886, 94 N. C. 
709; Riggles v. City of Durham, 1886, 94 N. C. 800. 

182 Art, X, sec. 7. 


CHAPTER IX 
SEPARATION OF RACES IN PUBLIC CONVEYANCES 


THERE is perhaps no phase of the American race prob- 
lem which has been discussed so much within the last dec- 
ade as the so-called “Jim Crow” laws, the statutes re- 
quiring separate accommodations for white and colored 
passengers in public conveyances. This arises largely from 
the fact that these legislative enactments are of general 
concern, while the other legal distinctions have directly 
affected only certain classes of each race. Laws prohibiting 
intermarriage, for instance, concern only those of mar- 
riageable age; suffrage restrictions apply only to males of 
voting age; and statutes requiring separate schools affect 
immediately only children and youths; but the laws requir- 
ing white and colored passengers to occupy separate seats, 
compartments, or coaches concern every man, woman, and 
child, who travels, the country over. They affect not only 
those living in the States where the laws are in force, but 
the entire traveling public. The white man or the Negro 
in Massachusetts may not care anything about the suffrage 
restrictions of South Carolina;~but, if he travels through 
the South, he must experience the requirements of the 
“Jim Crow ” laws. 


207 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


ORIGIN OF “ JIM CROW ” 


The phrase “Jim Crow” has become so inseparably 
affixed to the laws separating the races in public con- 
veyances that two States, North Carolina and Mary- 
land, have indexed the laws on that subject under 
“J” in some of their annual statutes. The earliest 
public use of the phrase appears to have been in 
1835, when Thomas D. Rice, the first Negro minstrel, 
brought out in Washington a dramatic song and Negro 
dance called “Jim Crow.” The late actor, Joseph 
Jefferson, when only four years old, appeared in this 
dance.1 In 1841 “Jim Crow” was first used in Massa- 
chusetts to apply to a railroad car set apart for the use of 
Negroes. The phrase, then, has a somewhat more dig- 
nified origin than is ordinarily attributed to it by those 
who have considered it as only an opprobrious compar- 
ison of the color of the Negro with that of the crow. 


DEVELOPMENT OF LEGISLATION PRIOR TO 1875 


The first “ Jim Crow” laws are those of Florida and 
Mississippi in 1865, and Texas in 1866. The laws* of 
Florida provided: “That if any Negro, mulatto, or other 
person of color shall intrude himself into . . . any rail- 
road car or other public vehicle set apart for the exclusive 
accommodation of white people, he shall be deemed guilty 
of a misdemeanor and, upon conviction, shall be sentenced 
to stand in pillory for one hour, or be whipped, not ex- 
ceeding thirty-nine stripes, or both, at the discretion of the 


jury, nor shall it be lawful for any white person to intrude 


208 


DEVELOPMENT OF LEGISLATION PRIOR TO 1875 


himself into any railroad car or other public vehicle set 
apart for the exclusive accommodation of persons of color, 
under the same penalties.” The law* of Mississippi was 
as follows: “That it shall be unlawful for any officer, 
station agent, conductor, or employee on any railroad in 
this State, to allow any freedman, Negro, or mulatto, to 
ride in any first-class passenger cars, set apart, or used 
by, and for white persons; and any person offending 
against the provisions of this section shall be deemed 
guilty of a misdemeanor, and on conviction thereof, be- 
fore the circuit court of the county in which said offence 
was committed, shall be fined not less than fifty dollars, 
nor more than five hundred dollars; and shall be impris- 
oned in the county jail until such fine and costs of prose- 
cution are paid: Provided, that this section of this act 
shall not apply in the case of Negroes or mulattoes, travel- 
ing with their mistresses, in the capacity of nurses.” 
Texas® simply provided that every railroad company 
should be required to attach to each passenger train 
tun by it one car for the special accommodation of 
freedmen. 

Other Southern States, perhaps, would have under- 
taken similar legislation, had the legislatures been left 
unfettered ; but under the Reconstruction régime, a num- 
ber of the States even passed laws prohibiting discrimina- 
tio against Negroes in public conveyances. In 1870, the 
Georgia legislature ®° enacted a statute requiring the rail- 
roads in the State to furnish equal accommodations to 
all, without regard to race, color, or previous condition, 
when a greater amount of fare was exacted than had been 
exacted before January 1, 1861, which had been at that 

15 209 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


time half-fare for persons of color. Texas,” in 1871, re- 
pealed the law of 1866 and prohibited public carriers 
“from making any distinctions in the carrying of pas- 


sengers ” 


on account of race, color, or previous condition, 
making the violation of the law a misdemeanor punishable 
by a fine of not less than one hundred nor more than five 
hundred dollars, or imprisonment for not less than thirty 
or more than ninety days, or both. In 1873, Louisiana * 
prohibited common carriers from making any discrim- 
ination against any citizen of the State or of the United 
States on account of race or color, and went further still 
by prohibiting common carriers from other States from 
making such discriminations while in the State. Out of 
this latter provision arose the great case of Hall v. De- 
Cuir, which will be discussed later. In 1874, Arkansas ° 
prohibited any public carrier from making any rules for 
the government or control of his business which should 
not affect all persons alike, without regard to race or 
color. 

In the meantime, some of the States outside the South 
were taking steps to adjust the privileges of persons of 
color. In 1866, Massachusetts?® made it unlawful ‘to 
exclude persons from or restrict them in . . . any public 
conveyance . . . except for good cause.” The following 
year, Pennsylvania 74 enacted a statute prohibiting rail- 
roads from excluding persons from their cars or requiring 
them to ride in different parts of the cars on account of 
color or race, also prohibiting the conductor or other agent 
of the railroad from throwing the car off the track to 
prevent such persons from riding. This law was passed 
just a few days before the famous case of West Chester 
210 


LEGISLATION BETWEEN 1865 AND 1881 


and Philadelphia Railway Company v. Mills was decided, 
which case will also be discussed later. 

A statute of Delaware 1? of 1875, as has been seen, de: 
clared that the carriers of passengers might make such 
arrangements in their business as would, if necessary, as- 
sign a particular place in their cars, carriages, or boats to 
such of their customers as they might choose to place there, 
and whose presence elsewhere would be offensive to the 
major jart of the traveling public, where their business 
was conducted; but the accommodations must be equal 
for all if the same price for carriage was required from all. 

- | 


LEGISLATION BETWEEN 1865 AND 1881 


Before considering the “Jim Crow” laws of the 
Southern States, it will be instructive to look into some 
of the court decisions between 1865 and 1881, the latter 
being the date of adoption of the first “Jim Crow” law 
of the second period, to see what steps the railroad, street 
car, and steamboat companies had taken to separate the 
races, in the absence of State legislation upon the sub- 
ject. 

In 1865, a colored woman ejected from a street car in 
Philadelphia 1* brought action against the conductor, who 
pleaded that there was a rule established by the road su- 
perintendent that Negroes should be excluded from the 
cars. The court held that the conductor had no right to 
eject a passenger on account of race or color, and that a 
regulation of the company would not be a defence to the 
action. 

Just a few days after the Pennsylvania legislature 

211 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


passed the act prohibiting discriminations against persons 
of color in public conveyances, to which reference has been 
made, the Supreme Court of the State ruled ** that it was 
not an unreasonable regulation of the railroad company to 
separate the passengers so as to promote personal comfort 
and convenience. This is interesting because it is the 
earliest case found supporting the legality of the separa- 
tion of races in public conveyances. Since the case arose 
before the Civil Rights Bill of the Commonwealth was 
adopted, it does not purport to rule upon the constitution- 
ality of that act. 

In San Francisco,!® in 1868, a street car ‘conductor re- 
fused to stop for a colored woman, saying, “ We don’t take 
colored people in the cars,’ whereupon she brought an 
action against the company and was awarded damages by 
the lower court. Here there is an implication that the 
railroad company had a regulation excluding persons of 
color from street cars. 

In 1870, the Chicago and Northwestern Railway Com- 
pany *® refused to admit a colored woman to the car set 
apart for ladies and gentlemen accompanying them. 
Whereupon she brought an action and recovered two hun- 
dred dollars damages. It does not appear from the case 
that the railroad had set apart any car or part of a car 
for the exclusive accommodation of colored persons. 

A steamboat company in Iowa, in 1873, had a regula- 
tion that colored passengers should not eat at the regu- 
lar tables, but at a table on the “guards” of the boat. 
The Supreme Court of that State held *’ that this rule 
was unreasonable and, therefore, illegal. 

The first case to reach the Supreme Court of the 

212 


LEGISLATION BETWEEN 1865 AND 1881 


United States involving the separation of white and col- 
ored passengers on cars was one brought against the Wash- 
ington, Alexandria, and Georgetown Railroad Company, in 
1873. This road was chartered by Congress in 1863 with 
the provision that no person should be excluded from the 
cars on account of color. A Negro woman, with an ordi- 
nary first-class ticket, was made to ride in a separate coach 
precisely like that used by the white passengers. The 
court ruled '® that the Act of 1863 meant that persons of 
color should travel in the same cars as white persons with- 
out any distinction being made; that, therefore, the law 
was not satisfied by the company’s providing cars assigned 
exclusively to persons of color, though they were as good 
as those assigned to white passengers. 

In 1869, the Louisiana *® legislature passed a law pro- 
hibiting railroad, street car, and steamboat companies 
from making any discrimination on account of race or 
color. In the often-cited case of Hall v. DeCuir,”° a test 
case arising under this act in 1875, the Supreme Court 
ruled that the Louisiana act was unconstitutional because 
it was an interference with interstate commerce. Chief 
Justice Waite, in delivering the opinion of the court, said: 
“Tf each State was at liberty to regulate the conduct of 
carriers while within its jurisdiction, the confusion likely 
to follow could not but be productive of great inconven- 
ience and unnecessary hardship.” This case has stood as a 
warning to the Southern States that they must be careful 
to mention in their “Jim Crow” laws that they apply 
only to intrastate passengers. But, as will be seen later, 
though this case has not been overruled, it has been re- 
fined upon. 

213 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


In a case *? arising in the Federal District Court of 
Texas in 1877, it was held that for a railroad employee to 
deny to a passenger the right to ride in the only car appro- 
priated for the use of ladies, because she was a colored 
woman, was a violation of the Civil Rights Bill. But the 
judge, in charging the jury at the trial, said that, if there 
were two cars equally fit and appropriate, then the white 
and colored passengers might be separated. 

The above are only a few of the many cases which 
arose between 1865 and 1881, involving the separation of 
white and colored passengers; they are cited to show that, 
in the absence of legislative authority, many of the public 
conveyance companies had regulations of their own sepa- 
rating the races. The “Jim Crow” laws, in other words, 
coming later, did scarcely more than to legalize an exist- 
ing and widespread custom. , 


SEPARATION OF PASSENGERS ON STEAMBOATS 


As already suggested, the “Jim Crow” laws apply to 
three classes of vehicles, namely: steamboats, railroad cars, 
and street cars. ‘There is comparatively little legislation 
about white and colored passengers on steamboats. North 
Carolina 7? is the only State to include steamboats in the 
regular “Jim Crow” law. It requires all steamboat com- 
panies engaged as common carriers in the transportation 
of passengers for hire to provide separate but equal accom- 
modations for the white and colored races of all steamboats 
carrying passengers. The violation of this law is punish- 
able by a fine of one hundred dollars; each day is con- 
sidered a separate offence. 

214 


SEPARATION OF PASSENGERS ON STEAMBOATS 


On February 9, 1900, the Virginia ** legislature en- 
acted a statute requiring the separation of white and col- 
ored passengers on all steamboats carrying passengers and 
plying in the waters within the jurisdiction of the State in 
the sitting, sleeping, and eating apartments, so far as the 
“construction of the boat and due consideration for com- 
fort of passengers’ would permit. There must be no dif- 
ference in the quality of accommodations. The law makes 
an exception of nurses and other attendants traveling with 
their employers, and officers in charge of prisoners. For 
disobeying the law, the boat officer is guilty of a misde- 
meanor punishable by a fine of not less than twenty-five 
dollars nor more than one hundred dollars. Any passenger 
wilfully disobeying the law is guilty of a misdemeanor 
punishable by a fine of not less than five dollars nor more 
than fifty dollars or by imprisonment for not less than 
thirty days, or both. The boat officer may eject an offend- 
ing passenger at any landing place, and neither he nor 
the steamboat company will be liable. In 1901, the above 
law ** was made more stringent by omitting the provision 
about the construction of the boat and consideration for 
the comfort of the passengers, quoted above. In 1904, 
South Carolina ®’ required all ferries to have separate 
cabins for white and colored passengers. 

The above legislation seems to be the only legislation 
as to steamboats up to the present; but it does not meas- 
ure the separation of the races on steamboats, inasmuch 
as the companies in the various States have adopted regu- 
lations requiring separate accommodations for the races. 
This custom applies to interstate as well as to intrastate 
travel. The steamers plying between Boston and the ports 

215 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


of the South, for instance, provide separate dining tables, 
separate toilet rooms, and separate smoking rooms for the 
white and colored passengers. This regulation of inter- 
state travel is upheld by two Federal cases, one in Geor- 
gia 7° in 1879 and the other in Maryland *’ in 1885, which 
held in substance, that, inasmuch as Congress has enacted 
no law which forbids interstate common carriers from 
separating white and colored passengers so long as the 
accommodations are equal, during congressional inaction, 
the companies may make their own regulations. 


SEPARATION OF PASSENGERS IN RAILROAD CARS 


With the exception of the transient “ Jim Crow ” laws 
of Mississippi, Florida, and Texas of 1865-67, the first 
State to adopt a comprehensive law separating the white 
and colored passengers on railroad cars was ‘Tennessee ** 
which did so in 1881. The statute of that State stood alone 
until 1887, when a series of “ Jim Crow” laws were en- 
acted by the States in the following order: Florida,*® 1887; 
Mississippi,*° 1888; Texas,** 1889; Louisiana,*? 1890; 
Alabama,®* Kentucky,** Arkansas,** and Georgia,?* 1891. 
For some years thereafter the subject remained untouched 
by the legislatures, save an amending statute now and 
then; but in 1898-99, the other Southern States began 
to fall into line: South Carolina,?? 1898; North Caro- 
lina,** 1899; Virginia,®® 1900; Maryland,*® 1904; Okla- 
homa,*t 1907. It appears that Missouri is the only South- 
ern State which has not separated the races in railroad 
cars. 

The details of the “Jim Crow” laws as to railroads 

216 


SEPARATION OF PASSENGERS IN RAILROAD CARS 


are very nearly the same in all the Southern States. They 
require white persons, on the one hand, and “ Negroes,” 
” “ yersons of African descent,” ete., on 
the other, to occupy separate seats, compartments, or 


“ nersons of color, 


coaches. The legal meaning of the above-mentioned 
phrases has already been considered. It is safe to say, as 
the Arkansas statute does declare, that, if one has a visible 
and distinct admixture of African blood, he must accept 
the accommodations furnished colored passengers. 


Interstate and Intrastate Travel 


The first great question that arises is the extent of 
application of the laws. The statutes declare that they 
apply to all railroads doing business in the State. But 
just what does this mean? It has been generally under- 
stood and the principle has been confirmed by judicial de- 
cisions *? that States may pass laws separating passengers 
going one from one point to another in the same State. 
But how about passengers coming from or going to points 
outside the State? Suppose, for instance, a colored pas- 
senger were to board a train at Philadelphia for Hvans- 
ville, Indiana, and go through Maryland, West Virginia, 
and Kentucky. Pennsylvania and West Virginia have no 
“ Jim Crow” laws; Maryland and Kentucky have. When 
the colored passenger reaches the Maryland line, must he 
enter a car set apart for colored people? When he reaches 
the West Virginia line, may he go back into the coach 
with white passengers? When, again, he reaches the Ken- 
tucky line, will he be forced to return to the car set apart 
for his race? And, finally, when he comes to Indiana, may 
he once more return to the car for white passengers? Or, 

a17 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


suppose a railroad from Ohio to Indiana has only a few 


miles of its track in Kentucky and only two depdéts in that 
State. Must the railroad furnish separate accommoda- 
tions for the white and colored passengers going between 
those two points in Kentucky? If these questions had been 
asked thirty years ago or at the time of the Hall v. DeCuir 
case, there is no doubt that the Federal courts would have 
held that it was an unwarranted interference with inter- 
state commerce or would lead to too much confusion. 

The law of Alabama of 1891 contained the provision 
that “ this act shall not apply to cases where white or col- 
ored passengers enter this State upon such railroads under 
contract for their transportation made in other States 
where like laws to this do not prevail.” Since these laws, 
however, have become so prevalent throughout the South, 
the courts seem to have swung over to the side of public 
opinion. In 1889, the Supreme Court of Mississippi 
held #* that though the “Jim Crow” law of that State 
applied only to intrastate travel, it was not an unwar- 
ranted burden upon interstate railroads to require them 
to furnish separate accommodations for the races as soon 
as they came across the State line. 

In 1894, the “Jim Crow” law of Kentucky was de- 
clared unconstitutional by the Federal Circuit Court ** be- 
cause the language of the acts was so comprehensive as to 
embrace all passengers, whether their passage commenced 
or ended within the State or otherwise and thus interfered 
with interstate commerce. Four years later, however, the 
Court of Appeals *® of Kentucky, considering the same 
statute, ruled that the law of that State was not in viola- 


tion of the Fourteenth Amendment or the “interstate — 


218 


SEPARATION OF PASSENGERS IN RAILROAD CARS 


commerce clause” of the Federal Constitution, arguing 
that, if it did apply to interstate passengers, which was 
not conceded, it would be construed to apply only to trans- 
portation within the State. Under this latter ruling ap- 
parently the colored passenger going from West Virginia 
to Indiana through Kentucky would have to ride in the 
car provided for his race in that State. 

The same year, 1898, the Supreme Court *® of Tennes- 
see held that it was a proper exercise of the police power 
to require even interstate passengers to occupy separate 
accommodations while in that State. The last case *7 
upon this point, decided April 16, 1907, held that a rail- 
road company may, independently of statute, adopt and 
enforce rules requiring colored passengers, although they 
are interstate passengers, to occupy separate coaches or 
compartments. 

Thus the matter stands. In the absence of a recent 
United States Supreme Court decision upon the point, it 
would be unsafe to make a generalization. But it is clear 
that there has been, in the point of view of the Federal 
judiciary, a reaction from the extreme doctrine of Hall v. 
DeCuir. All the lower courts, both State and Federal, are 
inclined to make the laws apply to all passengers, both 
intrastate and interstate, so long as they are withia the 
borders of the particular State. 


Sleeping Cars 
In a number of the “ Jim Crow ” laws there are special 
provisions about Pullman cars. Oklahoma and Texas pro- 
vides that carriers may haul sleeping or chair cars for 
- the exclusive use of either race separately, but not jointly. 
219 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


Georgia goes farthest in legislation on this point. In 1899, 
the legislature provided that, in assigning seats and berths 
on sleeping cars, white and colored passengers must be 
separated ; but declared that nothing in the act should be 
construed to compel sleeping-car companies to carry per- 
sons of color in sleeping or parlor cars. The act does not 
apply to nurses and servants with their employers, who 
may enter and ride in the car with their employers. The 
conductors are made special policemen to enforce the law, 
and the failure or refusal to do so is punishable as a mis- 
demeanor. The “Jim Crow” laws in Maryland, North 
Carolina, and Virginia do not apply to Pullman cars or 
to through express trains; nor, in South Carolina, to 
through vestibule trains. 

The Court of Appeals of Texas,** in 1897, held that 
a colored passenger in.a Pullman ear, going from a point 
outside of Texas into that State, might be compelled, 
upon reaching the Texas line, to enter a Pullman car set 
apart for passengers of his own race, provided the accom- 
modations were equal. This decision is in harmony with 
those already considered with reference to day coaches. 


Waiting-Rooms 

Three States, Arkansas, Louisiana, and Oklahoma, re- 
quire separate waiting-rooms at railroad depots. In Mis- 
sissippi, the railroad commission was given power in 
1888 to designate separate waiting-rooms, if it deemed 
such proper. In most, if not all, of the other Southern 
States, separate waiting-rooms are provided by the railroad 
companies on their own initiative, and this action on their 
part was held constitutional ¢® in South Carolina in 1893. — 
220 


SEPARATION OF PASSENGERS IN RAILROAD CARS 


The most recent legislation along this line was an act 
of South Carolina of February 23, 1906, requiring a sepa- 
ration of the races in all station restaurants and eating- 
houses, imposing a heavy fine for its violation. It is prob- 
able that the necessity or propriety of this law was sug- 
gested by the disturbance which arose at Hamlet, North 
Carolina, near the South Carolina line, when the propri- 
etor of the Seaboard Air Line Railway eating-house at 
that place allowed a party of Negroes, one of whom was 
Dr. Booker T. Washington, to eat in the main dining 
room, while the white guests were fed in a side room. 


Trains to which Laws do not Apply 


There are certain classes of trains to which the “ Jim 
Crow ” laws do not apply. In Maryland, Oklahoma, Tex- 
as, and Virginia, they do not apply to freight trains car- 
rying passengers in the caboose cars. South Carolina ex- 
empts narrow-gauged roads from the requirements of the 
law. North Carolina gives its railroad commissioners 
power to exempt branch lines and narrow-gauged roads 
if, in their judgment, separation is unnecessary to secure 
the comfort of passengers. South Carolina provides that, 
where a railroad is under forty miles in length and oper- 
ates both a freight and a passenger train daily, the law 
applies only to the passenger train. These two States also 
except relief trains in case of accident. Whether there 
is statutory exemption or not, the railway company can- 
not be held responsible for not separating the passengers 
in case of an accident.®°® Oklahoma allows the running of 
extra or special trains or cars for the exclusive accommo- 
dation of either race, if the regular trains or cars are oper- 

221 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


ated upon regular schedule. Texas provides that the pro- 
visions of its act shall not apply to any excursion train run 
strictly as such for the benefit of either race. 


Passengers to whom Law does not Apply 

Certain classes of passengers are exempt from the laws. 
There is, for instance, an exemption in favor of nurses 
attending the children or sick of the other race in Florida, 
Georgia, Kentucky, Louisiana, Maryland, North Carolina, 
South Carolina, Texas, and Virginia. The Florida pro- 
vision is that nothing in the act shall be construed to pre- 
vent female colored nurses having the care of children or 
sick persons from riding in cars for white passengers. 
North Carolina excepts “ Negro servants in attendance 
on their employers.” These two qualifications sound in- 


nocent enough, but probably upon a test they would be 


declared unconstitutional. It would be considered class 
legislation in that colored nurses and Negro servants are 
specifically mentioned instead of exempting nurses and 
servants in general. In fact, the point has been decided 
in the case of street-car provisions with similar wording. 
Arkansas, Kentucky, Maryland, Oklahoma, Texas, 
and Virginia expressly exempt the employees of a rail- 
road in the discharge of their duty from the requirements 
of the “Jim Crow” laws. Where such exemption is not 
so made in the statute, it must be taken for granted, for 
it would be manifestly unreasonable to prohibit a white 
conductor from going into the colored coach to collect 
tickets, or a colored porter from going into the coach for 


white passengers to regulate the ventilation or for any. 


other purpose of his employment. It may be noted, how- 
Qa2 


———— | —_ 


a 


ee ee ne ey eee 


SEPARATION OF PASSENGERS IN RAILROAD CARS 


ever, that in States where these laws apply, the white con- 
ductor usually assists the white passengers in entering 
and leaving the cars, while colored porters attend to the 
colored passengers. 

Most of the States provide that the laws do not a nky 
to officers in charge of prisoners. Arkansas declares that 
“officers accompanying prisoners may be assigned to the 
coach or room to which said prisoners belong by reason 
of race.” Louisiana, on the contrary, exempts prisoners in 
the charge of officers from the “Jim Crow” laws. The 
South Carolina law exempts lunatics as well. The law of 
Kentucky exempts “officers in charge of prisoners.” When, 
in a case which arose in Kentucky, a sheriff went to take a 
Negro lunatic over the road, the conductor required the 
lunatic to stay in the colored coach, and gave the sheriff the 
choice of staying with the lunatic or leaving him and riding 
in the car for white passengers. The court *! upheld the 
action of the conductor, ruling that the exemption applied 
only to the officers, not to the prisoners. ‘The law has the 
same effect as if it said that the officer should ride in the 
car set apart for the race of the prisoner or lunatic, be- 
cause it is his duty to guard his charge, and, if the pris- 
oner or lunatic must stay in the car for his race, the officer 
must stay there with him. North Carolina, South Caro- 
lina, and Maryland exempt prisoners from the require- 
ments of the “Jim Crow ” laws. 


Nature of Accommodations 
As to the nature of railroad accommodations, all “ Jim 
Crow ” laws provide, in substance, that the accommoda- 
tions for white and colored passengers must be equal for 
223 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


both races. Florida provides that the coaches for colored 
passengers (with first-class tickets) must be equally good 
and provided with the same facilities for comfort as those 
for white passengers with first-class tickets. Kentucky, 
Maryland, and Virginia prohibit any difference in qual- 
ity, convenience, or accommodation. ‘Tennessee provides 
that the first-class coaches for colored passengers must “ be 
kept in good repair, and with the same convenience and 
subject to the same rules governing other first-class cars, 
_ preventing smoking and obscene language.” 

There is no one point upon. which the courts are more 
in accord than that there is no ground of action so long 
as the accommodations are substantially equal.°? The 
great working principle was enunciated in 1885 in the Cir- 
cuit Court °* of Tennessee in the doctrine that equality of 
accommodation does not mean identity of accommoda- 
tion. And, indeed, the railroad company is not liable for 
damages even for inequality of accommodation, unless it 
is proved that the plaintiff actually sustained damages by 
such inequality.®* , 


Means of Separation 


The actual separation of the races is accomplished by 
requiring railroads to furnish on each passenger train 
either separate cars or one car divided into separate com- 
partments by a partition. Each State gives the choice. 
In case of the division of the car into compartments, the 
partition must, in Arkansas, Oklahoma, and Kentucky, be 
made of wood; in Kentucky, Maryland, Oklahoma, and 


Texas, it must be “substantial”; and in Maryland and 


Texas, it must have a door in it. Arkansas requires only a — 


Qr4 


—— 


‘Sage >. wee | 


SEPARATION OF PASSENGERS IN RAILROAD CARS 


partitioned car on roads less than thirty miles long, but 
separate cars on longer roads, though a train on any road 
may carry one partitioned car. 

Maryland and North Carolina provide that, in case 
the car or compartment for either race becomes filled and 
no extra cars can be obtained and the increased number 
of passengers could not have been foreseen, the conductor 
may assign a portion of the car or compartment for one 
race to the passengers of the other race. 


Designation of Separation 


Several States specify a means by which the public 
shall be notified of the existence of the “ Jim Crow” re- 
quirements. Arkansas requires the law to be posted in 
each coach and waiting-room; Louisiana, in each coach 
and ticket-office; Texas, in each coach and depot. In 
Kentucky, Maryland, Oklahoma, and Texas, each ‘coach 
or compartment must bear in some conspicuous place ap- 
propriate words, in plain letters, to indicate the race for 
which it was set apart. 


Punishment for Violating Law 


Certain liabilities are incurred for the violation of the 
“Jim Crow” laws. The three parties concerned are the 
passenger, the conductor or manager of the train, and the 
railroad company itself. If a passenger refuses to occupy 
the coach or compartment to which he, by his race, be- 
longs, the conductor may refuse to carry him and may 
eject him if he is already on the train; and for this nei- 
ther the conductor nor the railroad company is liable. In 
Georgia and Texas, conductors are given express power 

16 225 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


to enforce the law, and in other States the power is im- 
plied. Some States punish passengers for wilfully rid- 
ing in the wrong car by a fine ranging from a minimum 
of five dollars in Maryland and Texas to a maximum of 
one thousand dollars in Georgia, or imprisonment from 
twenty days in Louisiana to six months in Georgia. 

The conductor is lable for two kinds of offences: (1) 
for asssigning a passenger to a car or compartment to 
which he does ont by race belong, and (2) for failing to 
separate passengers. Most of the States consider the two 
violations as one. Only Arkansas and Louisiana pre- 
scribe separate punishments for assigning the passenger to 
the wrong car—a fine of twenty-five dollars in Arkansas 
and a fine of twenty-five dollars or twenty days’ imprison- 
ment in Louisiana. The punishment for refusing to en- 
force the law is a fine varying from a minimum of five dol- 
lars in Texas to a maximum of one thousand dollars in 
Georgia, or, in a few States, imprisonment of varying 
length. In Texas, the fines collected are applied to the 
common school fund of the State. | 

The fine imposed upon railroad companies for failing 
or refusing to furnish separate accommodations, varies 
between twenty-five dollars and one thousand dollars for 
each offence, and for this purpose each trip that the train 
makes is considered a separate offence. .If, however, the 
railroad company provides the required separate cars or 
compartments and the conductor fails to enforce the law 
or violates its provisions, it is the conductor, not the com- 
pany, who is lable.®® 


226 


SEPARATION OF PASSENGERS IN STREET CARS 


Separation of Postal Clerks 

A special question has arisen out of the Federal postal 
cars on which both white and colored clerks are employed. 
At present, they are obliged to sleep in the same cars, and 
at the terminals of long runs dormitories are provided for 
them, but without any race separation. The post-office de- 
partment has said that such regulation is beyond its con- 
trol.°° Thus the matter stands, with a ‘growing discontent 
on the part of the white postal clerks to be so intimately 
associated with the colored clerks. 


The “Jim Crow” laws in the South, so far as the 
railroads are concerned, are very nearly complete. Mis- 
sourl, as has been said, is the only one of the Southern 
States which has not, by express enactment, separated the 
races. 


SEPARATION OF PASSENGERS IN STREET CARS 


The third division of the subject is the separation of 
races in street cars. This is a field of much more active 
legislation than any of the preceding, in which much has 
been done recently and in which much more is likely to 
be done. 

Of the thirteeen separate coach laws just considered, 
six of them—those of Alabama, Arkansas, Louisiana, Mis- 
sissippl, South Carolina, and Texas—except street rail- 
roads from their application. Georgia and Oklahoma alone 
make their laws all inclusive, embracing electric and street 
cars as well as railroad coaches. It is safe to assume that 
the laws of the other States refer only to railroad coaches. 

227 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


Present Extent of Separation 

With the exception of the early law of Georgia’ of 
1891, the “ Jim Crow ” street car laws came in with the new 
century. So far, eight of the Southern States have passed 
general statutes to separate the races on street cars, in the 
following order: Georgia,®°? 1891; Louisiana,®* 1902; Mis- 
sissippi,°? 1904; Tennessee,°° and Florida,*t 1905; Vir- 
ginia,°? 1906, and North Carolina,®* and Oklahoma,** 
1907. The statute of Arkansas, of 1908, might be in- 
cluded in the above list, but it applies only to. cities of the 
first class. Some States passed laws of special application 
before they made them general. Thus, in 1902, the legis- 
lature of Virginia °° separated the white and colored pas- 
sengers on street cars going between Alexandria and points 
in Fairfax and Alexandria Counties; and in 1901, between 
Richmond and Seven Pines. And so Tennessee,®’ in 1903, 
made the regular separate coach law apply to street cars 
in counties having 150,000 inhabitants or over, as shown 
by the census of 1900 or any subsequent Federal census. 
Memphis only came within this law. In 1905, South 
Carolina ®* required the separation of the races on “ elec- 
tric railways outside of the corporate limits of cities and 
towns.” This State has not yet made the law general. 

The extent of legislation at present is as follows: 
Georgia and Oklahoma, by their regular “Jim Crow” 
laws, require the white and colored passengers on street 
cars to be separated. Louisiana, Mississippi, Florida, Ten- 
nessee, Virginia, and North Carolina have separated the 
races by statutes specially applicable to street cars. Ar- 
kansas, by statute, requires a separation in cities of the 

228 


SEPARATION OF PASSENGERS IN STREET CARS 


first class; and South Carolina, on suburban lines. Mary- 
land, South Carolina, Alabama, Texas, Kentucky and 
Missouri do not, by statute, require the races to be sepa- 
rated on street cars in cities. But the absence of legisla- 
tive enactments does not mean at all that races are not 
actually separated on street cars. In order to find out 
the extent of actual separation, the author made inquiry 
of the mayors of every city of 10,000 or more inhabitants 
in the Southern States and in West Virginia and Kansas. 
Some generalizations may be made from the almost com- 
plete number of replies received. It may be assumed that 
the races are separated in the above-mentioned States 
which have statutes on the subject. It appears that the 
white and colored passengers are not separated on the street 
cars of any of the cities of Kansas, Kentucky, Maryland, 
Missouri, and West Virginia. In the absence of State 
laws, either the municipal authorities or the street railway 
companies themselves provide for and require separation 
in the cities of Alabama and South Carolina. Thus, 
though there is no ordinance on the subject in Charleston, 
South Carolina, separation is required by the company 
itself. 


Method of Separation 


The city ordinances and regulations requiring separa- 
tion on street cars are practically the same as the State 
statutes on the subject. The ordinances, regulations, and 
statutes all require that the accommodations for passen- 
gers of both races shall be equal. The three methods of 
separation are (1) separate cars, (2) partitioned cars, and 
(3) seats assigned to each race. The only city that un- 

229 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


qualifiedly requires separate cars is Montgomery, Alabama. 
The ordinance was passed October 15, 1906, over the 
mayor’s veto, he vetoing it because he believed it would be 
impracticable. When the law went into effect, November 
23, the service was materially reduced because of the 
scarcity of cars.°° The State laws of Florida, Louisiana, 
and Mississippi give the choice of using two or more cars 
or partitioned cars. A number of the ordinances require 
that the cars be divided either by movable screens or par- 
titions. They are movable so as to apportion the seating 
capacity to the requirements of each race. But in by far 
the greatest number of cases, the separation is accom- 
plished by the conductor assigning white and colored pas- 
sengers to different seats. Practically without exception, 
the colored passengers are required to be seated from the 
rear to the front of the car; the white, from the front to 
the rear. On railroad cars, the colored passengers are 
almost invariably assigned to the front compartments. 
The colored passengers on street cars are seated in the 
rear in order—to give the reason as stated by the mayor 
of Birmingham, Alabama—to do “ away with the disagree- 
able odors that would necessarily follow the breezes.” In 
the closed cars of that city, however, the colored passengers 
are seated in front so as to give the white passengers the 
rear for smoking. In other cities, the two rear seats are 
reserved for smoking, so the colored passengers begin to 
sit on the third seat from the rear. As the car fills, the 
races get nearer and nearer to one another. North Caro- 
lina provides that white and colored passengers shall not 
occupy contiguous seats on the same bench. Virginia, 
likewise, prohibits white and colored passengers from 
230 | 


SEPARATION OF PASSENGERS IN STREET CARS 


sitting side by side on the same bench unless all the other 
seats are filled. The conductor has the power to require 
passengers to change their seats as often as is needful to 
secure actual separation of the races. The laws do not 
prohibit the running of special cars exclusively for either 
race, provided the regular cars are run. 

The cars or compartments are to be clearly designated 
to show to which race they belong. Several statutes and 
ordinances require that the placard “ wHITE” or “ COL- 
ORED,” in plain letters, not less than two inches high, 
shall be upon each end of the car or compartment, or 
upon the sides of the open cars. A recent case 7° in Mis- 
Sissippi would seem to hold that the sign must be large 
enough to be seen in all parts of the car. The laws of 
Mississippi and Louisiana require that the law be posted 
in the car; in Virginia, the substance of the law is posted 
in the car. In Houston, Texas, the race to which the seat 
belongs is posted on the back of the seat. In several cities, 
any one tampering with such a sign will be punished by 
a heavy fine. 

The law. of North Carolina probably contains a fatal 
defect in that it requires separation “as far as practi- 
cable.” Of course, this would allow the conductors or 
companies to make numberless exceptions. As a matter of 
fact, most of the North Carolina cities had been contem- 
plating such a separation, and, when the law went into 
effect. the first of April, 1907, were ready to regard and 
enforce it. 

Enforcement of Laws 

In practically all of the cities, the street-car conductors 

and motormen are special policemen to enforce the law. 
231 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


For the ejectment of a wilfully disobedient passenger, they 
incur no penalty either upon themselves or the company. 
North Carolina provides that the conductor shall not be 
liable if he makes the mistake of assigning a passenger to 
the wrong seat. In several of the cities, it is the duty of 
the regular police officers to arrest passengers whom they 
see riding in the wrong cars. The penalty upon the con- 
ductor for knowingly failing or refusing to enforce the 
law varies all the way from a minimum fine of one dollar 
in Montgomery, Alabama, to five hundred dollars in Jack- 
sonville, Florida, or imprisonment from one to ninety 
days. The liability of the company is correspondingly 
heavy in proportion. Each trip made without providing 
for the requirements of the law is expressly declared a 
separate offence. In Pensacola, Florida, the fine upon the 
company for not furnishing separate accommodations is 
fifty dollars a day. 

When a passenger consciously disobeys the law, he may 
be fined; and if he insists upon occupying the wrong seat, 
the conductor may eject him from the car. According to 
the Virginia law, “in case such passenger ejected shall 
have paid his fare upon said car, he shall not be entitled 
to any part of said fare.” 


Exemptions 


The only phase of these “Jim Crow” street-car laws 
which has given rise to any serious discussion is the ques- 
tion of the exemptions from application. Most of the 
States and cities simply except nurses of one race in 
attendance upon the children or sick of the other race, the 
nurse going into the car to which the child or sick person 

232 


NOTES 


belongs. Of course, the street-car employees are excepted, 
and Virginia excepts officers in charge of prisoners and 
lunatics. But Florida and North Carolina declared that 
the law should not apply to colored nurses in attendance 
upon white children or white sick people; and Augusta, 
Georgia, has the same in its ordinance. The constitution- 
ality of the Florida law was tested five years ago in the 
Supreme Court ™ of that State, and was declared to vio- 
late the Fourteenth Amendment, the court, in its opinion, 
saying: “It gives to the Caucasian mistress the right to 
have her child attended in the ‘Caucasian department of 
the car by its African nurse, and withholds from the Afri- 
can mistress the equal right to have her child attended in 
the African department by its Caucasian nurse.” This is 
the same discrimination as to the invalid adult Caucasian 
attended by a colored nurse. As soon as the Florida State 
law was declared unconstitutional, the cities passed ordi- 
nances making the provision apply to nurses of either 
race. The North Carolina law was never tested, for it 
was amended before a test case reached the courts. The 
North Carolina legislature 7? of 1909 obviated all possible 
difficulty by amending its law to the effect that the nurses 
of the children or sick or infirm of one race might ride 
in the car set apart for the race of the infant or sick or 
infirm person so attended. 


NOTES 


1 Century Dictionary, I, p. 546. 
27Tbid., 1V, p: 382388. 
3 Laws of Fla., 1865, p. 24. 

R30 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


* Laws of Miss., 1865, pp. 231-82. 

5 Laws of Texas, 1866, p. 97. 

6 Laws of Ga., 1870, pp. 427-28. 

7 Laws of Texas, 1871, 2d sess., p. 16. 

8 Acts of La., 1873, pp. 156-57. 

® Acts of Ark., 1873, pp. 15-19. 

10 Acts and Resolves of Mass., 1866-67, p. 242. 

11 Laws of Pa., 1867, pp. 38-39. 

12 Laws of Del., 1875-77, p. 322. 

13 Derry v. Lowry, 1865, 6 Phila. Rep. 30. 

14 West Chester and Phila. Ry. Co. v. Mills, 1867, 55 Pa. 
S. 209. 

15 Pleasant v. N. B. & M. Ry. Co., 1868, 34 Calif. 586. 

160, & N. W. Ry. Co. v. Williams, 1870, 55 Ill. 185. 

17 Coger v. N. W. Union Packet Co., 1878, 37 Ia. 145. 

18 Ry. Co. v. Brown, 1873, 17 Wall, 445. 

19 Acts of La., 1869, p. 37. 

2095 U.S. 485, at p. 489 (1875). 

21U. S. v. Dodge, 1877, Fed. Case No. 14,976. 

22 Pub. Laws of N. C., 1899, pp. 5389-40. 

23 Acts of Va., 1899-1900, p. 340. 

24 Tbid., extra sess., 1901, pp. 329-30. 

25 Acts of S. C., 1904, pp. 488-39. 

26 Green v. “City of Bridgeton,” 1879, Fed. Case No. 
5,754. 

27“ The Sue,” 1885, 22 Fed. 848. 

28 Laws of Tenn., 1881, pp. 211-12. 

29 Laws of Fla., 1887, p. 116. 

30 Laws of Miss., 1888, pp. 45 and 48. 

31 Laws of Texas, 1889, pp. 182-33; 1891, pp. 44-45 
and 165. 

82 Acts of La., 1890, pp. 152-54; 1894, pp. 183-34. 

33 Acts of Ala., 1890-91, pp. 412-13. 

234 


NOTES 


84 Acts of Ky., 1891-92-93, pp. 63-64. 

35 Acts of Ark., 1891, pp. 15-17; 18938, pp. 200-01. 

36 Laws of Ga., 1891, I, pp. 157-58; 1899, pp. 66-67. 

87 Acts of S. C., 1898, pp. 777-78; 1903, p. 84; 1906, p. 76. 
38 Pub. Laws of N. C., 1899, pp. 539-40; 1907, pp. 1238- 


39; 1909, p. 1256. 


29 Acts of Va., 1899-1900, pp. 236-87. 

40 Laws of Md., 1904, pp. 186-87. 

41 Laws of Okla., 1907-08, pp. 201-04. 

421, N. O. & T. Ry. Co. v. State, 1889, 6 S. 203; Plessy 


v. Ferguson, 1896, 163 U. S. 587; O. Val. Ry. Rec. v. Lander, 
1898, 47 S. W. 344; C. & O. Ry. Co. -v! Com. of Ky., 1899, 51 
S. W. 160. 


S 


48L. N. O. & T. Ry. Co. v. State, 1889, 6 S. 203. 

44 Anderson v. L. & N. Ry. Co., 1894, 62 Fed. 46. 

45 QO, Val. Ry. Rec. v. Lander, 1898, 47 S. W. 344. 

46 Smith v. State, 1898, 46 S. W. 566. 

47 Chiles v. C. & O. Ry., 1907, 101 S. W. 386. 

48 Pullman-Palace Car Co. v. Cain, 1897, 40 S. W. 220. 
49 Smith v. Chamberlain, 1893, 17 S. E. 391. 

50©, & O. Ry. Co. v. Com. of Ky., 1905, 84 S. W. 566. 
510. & N. Ry. Co. v. Catron, 1897, 48 S. W. 448. 

52 West Chester and Phila. Ry. Co. v. Mills, 1867, 52 Pa. 


. 209; U. S. v. Dodge, 1877, Fed. Case No. 14,976; Murphy 


v. W. & A. Ry. Co., 1885, 23 Fed. 687; Logwood v. M. & C. 
Ry. Co., 1885, 23 Fed. 318; Houck v. S. Pac. Ry. Co., 1888, 
38 Fed. 226; Plessy v. Ferguson, 1896, 163 U. S. 537. 


58 Logwood v. M. & C. Ry. Co., 1885, 23 Fed. 318. 
54 Norwood v. G. H. & S. A. Ry. Co., 1896, 34 S. W. 180. 
557, & N. Ry. Co. v. Com. of Ky., 1896, 37 S. W. 79. 
56 Raleigh, N. C., News and Observer, March 12, 1907. 
57 Laws of Ga., 1891, I, pp. 157-58. 
58 Acts of La., 1902, pp. 89-90. 

235 


SEPARATION OF RACES IN PUBLIC CONVEYANCES 


59 Laws of Miss., 1904, pp. 140-41. 

60 Acts of Tenn., 1905, pp. 321-22. 

61 Laws of Fla., 1905, pp. 99-100. 

62 Acts of Va., 1906, pp. 92-94. 

63 Pub. Laws of N. C., 1907, pp. 1238-39. 

64 Laws of Okla., 1907-08, pp. 201-04. 

65 Acts of Ark., 1903, pp. 178-79. 

66 Acts of Va., 1901, extra sess., pp. 212-13; 1901-02, pp. 
639-40. 

67 Acts of Tenn., 1903, p. 75. 

68 Laws of S. C., 1905, p. 954. 

69 Raleigh, N. C., News and Observer, Nov. 23, 1906. 

70 Walden v. Vicksburg Ry. and Light Co., 1906, 40 S. 751. 

™1 State v. Patterson, 1905, 39 S. 398, at p. 400. 

72 Pub. Laws of N. C., 1909, p. 1256. 


CHAPTER X 
NEGRO IN COURT ROOM 


THE Negro goes into a court room in one or more of 
six capacities, namely: as spectator, witness, juror, party 
to a suit, attorney, or judge. It is in each of these ca- 
pacities that the Negro in the court room is to be consid- 
ered, but some of them permit of only brief mention. 
How the Negro actually fares in the court room—whether 
he gets justice as often as the white person does, whether 
his testimony has as much weight with the jury and court 
as that of the white witness, whether the Negro attorney 
or judge is accorded as much courtesy as the white man 
in a similar position—would make an interesting and 
profitable study, but such a study is largely outside the 
field ‘of this investigation. It should be kept in mind now, 
as in the previous chapters, that only those distinctions 
are considered which have come within the pale of the 
law since 1865, either in the form of statutory enactment 
or judicial decision. Where mention is made of some of 
the actual extralegal race distinctions in the court room, 
it is only for illustration. 


AS SPECTATOR 


The court room, while the court is in session, is open to 
all citizens, regardless of race or color. No instance has 
237 


NEGRO IN. COURT ROOM 


been found either in the statutes or judicial reports of 
one’s admission to or exclusion from the court room being 
dependent upon his race or color. It is to be noticed, 
however, in Southern court rooms that the spectators are 
separated by race, Negroes usually occupying seats on one 
side of the room and white people on the other. This 
must be entirely a matter of custom, as no case has been 
found of such separation being required by law or ordi- 
nance. While this point has not been deemed important 
enough for a special investigation, it is presumed that one 
will find the races separated in the court room in those 
States or communities where they are separated in other 
places—as in public conveyances, schools, and churches. 

A Negro in the South, as elsewhere, has, legally and 
actually, as good an opportunity to observe court proceed- 
Ings as a white person, though custom may require him to 
sit in a different part of the court room from that occu- 
pied by the latter. 


AS JUDGE 


Little within the scope of this chapter can be said of 
the Negro as a judge. There are cases still in the North of 
Negroes sitting on the bench, mostly in lower courts, and 
there may be instances, here and there, in the South, of 
Negroes holding judicial offices. Certainly, the Negro 
elector is eligible, both under Federal and State Constitu- 
tions, to hold a judgeship. Whether or not there are 
Negroes on the bench in a given State is not determined 
by the legislatures or the courts, but by the appointing 
power or by the choice of the people at the polls. 


238 


AS LAWYER 


AS LAWYER 


A Negro is eligible to practice law in every State; that 
is, nothing to the contrary appears in any of the State or 
Federal statutes now in force. Negroes may be admitted 
to the bar everywhere upon proving the same qualifications 
and passing the same examinations as required of other 
applicants for license. But this has not always been so. 
The privilege of practicing law in Iowa,! for instance, 
was, until 1870, restricted to white males. In that year 
it was extended to women and to members of other races 
than the white. Only one State appears to have consid- 
ered it needful to guarantee by statutory enactment the 
right to practice law to the Negro. An act of the Colo- 
rado * legislature in 189% reads: “ No persons shall be de- 
nied the right to practice as aforesaid on account of race 
or sex.” 

In 1877, a Negro, with a license to practice law in 
Massachusetts and the Circuit and District courts of the 
United States in the city of Baltimore, applied for a 
license to practice in the State courts of Maryland. The 
laws of Maryland * of 1872 limited the privilege of admis- 
sion to the bar to white male citizens. The Negro brought 
suit because he was refused admission to the Maryland bar, 
and the Court of Appeals of Maryland* held that the 
State had a right to limit the privilege of practicing law 
to white males, holding that such a limitation did not 
violate the Fourteenth Amendment. The court said, in 
part: “ The privilege of admission to the office of an attor- 
_ ney cannot be said to be a right or immunity belonging to 
the citizen, but is governed and regulated by the Legisla- 

239 


NEGRO IN COURT ROOM 


ture, which may prescribe the qualifications required and 
designate the class of persons who may be admitted. The 
power of regulating the admission of attorneys in the 
courts of a State is one belonging to the State, and not 
to the Federal Government. As said by Mr. Justice Brad- 
ley in Bradwell’s case: ° ‘In the nature of things it is not 
every citizen of every age, sex and condition that is quali- 
fied for every calling and position. It is the prerogative 
of the legislator to prescribe regulations founded on na- 
ture, reason and experience, for the due admission of quali- 
fied persons to professions and callings demanding special 
skill and confidence. This fairly belongs to the police 
power of the State.?” According to the opinion in this 
case, which has not been overruled so far as has been 
found, a State legislature may, in the exercise of its 
police power, limit the privilege of practicing law to white 
males or to white people, and thus debar the Negro alto- 
gether. In the latest collection of Maryland laws, how- 
ever, that of 1904, no mention is made of race in the 
prescribed qualifications for admission to the bar, but no 
express repeal has been found in the annual statutes of the 
law of 1872 which limited the privilege of practicing law 
to white males. The presumption is, however, that Mary- 
land, in common with the other States, now admits Negro 
applicants on the same terms as white. 

It is generally known that Negro lawyers in the South- 
ern States are few, and it is considered that the field there 
for the Negro lawyer is not promising. ‘There were seven 
hundred and twenty-eight Negro lawyers in the United 
States in 1900. The following notice in The Emmanuel 
Magazine of July 3, 1909, a monthly publication by a Negro 

240 


AS WITNESS 


in Washington, North Carolina, is interesting in this con- 
nection: “ Mr. E. W. Canady, a respectable colored lawyer 
of Durham, N. C., not long since received three thousand 
four hundred dollars for his service at the bar in repre- 
senting one case. ‘This speaks more for him than any- 
thing else possibly could. It shows the public’s confidence 
in his ability both as a lawyer and a gentleman of integ- 
rity. It also shows that, at least in some cases, a Negro 
can get justice in a Southern court, not only for himself, 
but for others. The profession of law is the most difficult 
one a colored man can follow in the South, because he 
must deal with white judges, white jurors, white lawyers, 
and, sometimes, white witnesses, and a public sentiment 
which is created by the whites. If he keep his soul well 
equipoised and act gently and manfully—not bootlicking, 
but seeking the peace of the city wherein he dwelleth, as 
Jeremiah advised the Jews of Babylon to do, he can fare 
equally as well, if not better, in the South as he can in 
the North. I was not a little surprised when I asked Mr. 
Canady how the judges treated him and he said, ‘ Oh, 
they'll treat you all right, if you act rightly; they are 
bound to follow the law, you know.’ This should encour- 
age more young men to take up this profession.” 


AS WITNESS 


When one comes to the Negro as a witness, he finds 
much legislation and many judicial decisions, but they are 
confined largely to the first years after Emancipation; that 
is, to the years during which the rights and privileges of 
the Negro as a freeman were being defined and fixed. 

17 241 


NEGRO IN COURT ROOM 


The Negro slave had been either deemed incompetent as a 
witness, or, if deemed competent, his testimony was ad- 
mitted only in certain actions. 

In 1866, a white man in Kentucky was indicted for 
entering the house of a Negro and committing larceny. 
At the time a Negro in that State could not testify against 
a white man. A Circuit Court ® of the United States de- 
cided that it could take jurisdiction of this case under the 
Civil Rights Bill of 1866, holding that the Negro, as a 
citizen, had the right to be a witness in court. This 
appears to be the only case in which the Federal court has 
adjudicated upon the right of a Negro to testify. 

A law of Alabama’ of 1865 made Negroes competent 
to testify only in open court and only in cases, civil or 
criminal, to which a freedman, free Negro, or mulatto, 
was a party. This was reénacted in 1867.8 In 1886, a 
white man in Mobile was tried for the murder of a Negro. 
All the witnesses for the prosecution were Negroes, and all 
for the defendant, white people. The question of the color 
of witnesses was raised, and the city court of Mobile 
charged: “. .. . it is immaterial whether the witnesses 
were white or black, if you believe beyond a reasonable 
doubt that black witnesses are telling the truth, it is as 
much your duty to convict on their evidence as though 
they were white.” ‘There was an exception to this charge, 
but the Supreme Court of Alabama ® overruled the excep- 
tion. ‘The present law of Alabama seems to be that the 
color of the witness is immaterial in determining his com- 
petency. 

The Supreme Court of Arkansas, in 1869, held that . 
by the Civil Rights Bill of 1866 the laws prohibiting Ne- 

242 


AS WITNESS 


groes from testifying became inoperative. No other case 
on the point seems to have arisen in the State. 

The Constitution * of Florida of 1865 permitted Ne e- 
groes to testify only in proceedings founded upon injury 
to a Negro or in cases affecting the rights and remedies 
of Negroes. A statute’? of the same year, relative to 
testimony in general, provided that the testimony of Ne- 
groes should not be taken by deposition in writing or upon 
written interrogation, or “ otherwise than in such manner 
as will enable the court or jury to yuoRe the credibility 
of the witness.” 

The Constitution 1? of Georgia of 1865 made it the 
duty of the general assembly to provide laws prescribing in 
what cases the testimony of Negroes-should be admitted in 
the courts. This is the only reference to the Negro as a 
witness found in the Georgia statutes or court reports. 

Kentucky,** in 1865, provided that Negroes and mulat- 
toes should be competent witnesses in all civil proceed- 
ings in which Negroes or mulattoes were the only parties 
interested in the issue, and in all criminal proceedings in 
which Negroes or mulattoes were the defendants. In 1867, 
the Court of Appeals of Kentucky 7° held that the law of 
Kentucky prohibiting a Negro from testifying against a 
white person was still in force and was not rendered in- 
operative by the Civil Rights Bill of 1866. 

The Constitution’® of Maryland of 1867 provided 
that no person should be incompetent as a witness on ac- 
count of race or color unless thereafter so declared by an 
act of the general assembly. The general assembly ap- 
pears not to have acted. 

Mississippi,‘7 in 1865, provided that freedmen, free 

243 


NEGRO IN COURT ROOM 


Negroes, and mulattoes, should be competent in all civil 
eases to which a freedman, free Negro, or mulatto was a 
party, and in criminal cases in which the crime charged 
was alleged to have been committed by a white person 
upon a freedman, free Negro, or mulatto. But in 1867, 
Negroes were given the right to testify on the same terms 
as white people.** In 1865, South Carolina ’® declared 
that Negroes might testify in cases to which a person of 
color was a party. Tennessee,?° the same year, provided 
that Negroes and Indians should be competent as wit- 
nesses “‘in as full measure as such persons are by an act 
of Congress competent witnesses in all the courts of the 
United States.” 

The Constitution *t of Texas of 1866 contains the fol- 
lowing section: “ Africans and their descendants shall not 
be prohibited, on account of their color or race, from tes- 
tifying orally, as witnesses, in any case, civil or criminal, 
involving the right of injury to, or crime against, any of 
them in person or property, under the same rules of evi- 
dence that may be applicable to the white race; the cred- 
ibility of their testimony to be determined by the court 
or jury hearing the same; and the legislature shall have 
power to authorize them to testify as witnesses in all other 
cases, under such regulations that may be prescribed, as to 
facts hereafter occurring.” In pursuartce of this author- _ 
ity, the legislature * enacted that persons of color should 
not testify except where a prosecution was against a per- 
son of color or where thé alleged offence was against the 
person or property of a person of color. But in 1868, the 
Supreme Court ?* of Texas held that the first section of - 
the Civil Rights Bill gave Negroes the right to testify, 

a4 


AS WITNESS 


and in 1871 the legislature ** said that in the courts of that 
State there shall be no exclusion of any witness on account 
of color. 

Virginia,?> in 1866, provided that Negroes and Indians 
should be competent to testify in cases in which a Negro 
or Indian was a party. The testimony of Negroes had to 
be “ore tenus, and not by deposition.” The next year, 
this law was repealed and a statute °° enacted that colored 
persons should be competent to testify “as if they were 
white.” 

Thus far the legislation on Negro testimony in the 
Southern States only has been given. Similar questions 
have arisen in some of the other States. Thus, by an early 
statute of California 27 “no Indian, or person having one- 
half or more Indian blood, or Mongolian, or Chinese,” was 
permitted to give evidence in favor of or against a white 
person. The Supreme Court *® of the State held in 1869 
that this statute violated the Civil Rights Bill and was 
therefore null and void. A minority of the court, however, 
dissented on the ground that the Civil Rights Bill itself 
was unconstitutional as interfering with the domestic 
relations of citizens. 

A law of Indiana ?® of 1865 provided that all persons 
of competent age, without distinction as to color or blood, 
should be competent as witnesses, but provided that no 
Negro or mulatto who had come, or who should thereafter 
come into this State in violation of the thirteenth article 
of the Constitution of the State (prohibiting the immigra- 
tion of free Negroes) should, while said article continued - 
in force, be competent as a witness in any case in which a 
white person was a party in interest. It also provided °° 

245 


NEGRO IN COURT ROOM 


that where a Negro, Indian, or person excluded on account 
of mixed blood was a party in the case, his opponent 
should be excluded. Nevada,*t the same year, gave Ne- 
groes the right to testify, but not in favor of or against 
a white person, and also provided that the credibility of 
such Negro, black, or mulatto person should be left en- 
tirely with the jury. Washington,*? in 1866, provided 
that no one should be incompetent as a witness “ by reason 
of having Negro blood.” But in 1869, the legislature ** 
said that Indians or persons having over one-half Indian 
blood should not be competent to testify in an action or 
proceeding to which a white person was a party. West 
Virginia ** passed a law in 1866 that no person should be 
incompetent as a witness on account of race or color. 
During the first years after Emancipation, the States 
were very doubtful of the Negro’s fitness as a witness. In 
saying, as many of them did, that he could be a witness 
only in cases in which a Negro was a party, they were fol- 
lowing the “ Black Laws” before the War, to which ref- 
erence was made in the chapter on “ The Black Laws of 
1865-68.” That they were doubtful of the testimony of 
the Negro is shown by the provision of the act that the 
Negro’s credibility should be the subject of a special 
charge by the court and that his testimony should be given 
orally. It has been seen that some of the States soon re- 
pealed their laws discriminating against the Negro as a | 
witness, and that others enacted statutes allowing him to 
testify upon the same terms and conditions as a white per- 
son. In some of the States, the records do not show that 
the right to testify in court has yet been given to the 
Negro. But it must be taken as settled that, even in those 
246 


AS JUROR 


States which are silent on the subject, the Negro does 
have the same right to testify as the white person. How 
much weight is actually given to his testimony is a mat- 
ter not of law, but of fact, to be determined by the trier 
of fact, or jury, as the case may be. It may be said, in 
short, that, at present, the right of the Negro to testify in 
court is precisely co-extensive with the right of the white 

person. | 


AS JUROR 


Most of the legislation and suits concerning the Negro 
as a witness came during the years between 1865 and 
1870. Since then, the right of the Negro to testify in 
court has been generally undisputed. With the Negro as 
a juror, it has been different. There has not been a great 
deal of legislation about the Negro as a juror, not even 
during the years 1865-70 which were so prolific of race 
legislation. But the court reports from 1865 have been 
abundantly supplied with cases that have to do with the 
Negro as a juror, not referring so much to his right to 
serve as to his actual service on the jury. First, reference 
will be made to the legislation on the topic, then a number 
of cases will be discussed, most of which have turned upon 
a few fundamental principles of constitutional law, and, 
finally, a word will be said of Negro jury service as it 
actually exists. 

The fourth section of the Civil Rights Bill ** of 1875 
reads: “ That no citizen possessing all other qualifications 
which are or may be prescribed by law shall be disqualified 
for service as grand or petit juror in any court of the 
United States, or of any State, or account of race, color, 

247 


NEGRO IN COURT ROOM 


or previous condition of servitude, and any officer or other 
person charged with any duty in the selection or summon- 
ing of jurors who shall exclude or fail to summon any citi- 
zen for the cause aforesaid shall, upon conviction thereof, 
be deemed guilty of a misdemeanor, and be fined not more 
than five thousand dollars.” As was seen in the previous 
chapter on the civil rights of Negroes, the first sections of 
the Civil Rights Bill were declared unconstitutional in 
1883. But, as will be seen in the discussion of the cases 
that have arisen about the Negro as a juror, the section 
quoted above has stood the test of constitutionality and is 
still a part of our Federal statute law. 

When the States outside the South saw, in 1883, that 
the Federal Government was impotent to secure civil 
rights to Negroes, they began to enact Civil Rights Bills 
of their own, which virtually copied the Federal statutes 
of 1875. The following States enacted statutes practically 
the same as the Federal law referring to jury service: Indi- 
ana,*® in 1885; Michigan,*” in 1885; New York,** in 1895; 
Ohio,®® in 1884, and Rhode Island,*® in 1885. The only 
difference between these State statutes and the Federal 
statute is in the punishment for keeping a person off the 
jury because of his race or color. Indiana and Michigan — 
impose a fine of not less than one hundred dollars or im- 
prisonment of not more than thirty days, or both; New 
York imposes a fine of from one hundred dollars to five 
hundred dollars or imprisonment from thirty to ninety 
days, or both; Ohio imposes a fine from fifty dollars to five 
hundred dollars or imprisonment between thirty and 
ninety days, or both; Rhode Island imposes a fine not to 
exceed one hundred dollars. ‘This is practically all of 

248 


AS JUROR 


the jury legislation outside the South, which has been 
found. 

In Arkansas,‘* in 1867, a law granting certain rights to 
Negroes had the following provision: “‘ That nothing herein 
contained shall be construed to repeal or modify any statute 
or common law usage of this State respecting . . . service 
on juries.” Though nothing is said of it, one may infer 
that this meant that Negroes were not to sit on juries. A 
Louisiana *? law of 1880 states that, in the selection of 
jurors, “there shall be no distinction made on account of 
race, color, or previous condition.” ‘This State at the time 
was in the hands of the Reconstructionists. Mississippi,** 
in 1867, provided that freedmen should not be competent 
to serve as petit or grand jurors. A law of Tennessee ** of 
1866, giving Negroes the right to testify, had the provision 
that it should not be construed to give colored persons the 
right to sit on juries in that State. The same year, a 
law *® repealing certain other acts had the provision that 
nothing in the act should be construed to admit persons of 
color to serve on the jury. But in 1868, the Negroes of 
Tennessee *® were given full rights in this respect. This 
appears to be all of the legislation as to Negro jurors in 
the South between 1865 and the present. 

That the statute of 1875 prohibiting the exclusion of 
persons from jury service on account of race, color, or pre- 
' vious condition of servitude is constitutional, has been 
decided in a series of cases before the Supreme Court of 
the United States.*7 The mere fact that no Negroes are 
on a certain jury does not indicate that the Fourteenth 
Amendment, under which all these jury cases arise, has 
been violated; it must be shown that the Negroes were 

249 


NEGRO IN COURT ROOM 


kept off the jury consciously by State officials because of 
their race, color, or previous condition.*® The Fourteenth 
Amendment is violated, however, when the officers of the 
State. keep Negroes off the juries for these causes. The 
Supreme Court *® of the United States said in 1899: 
“ Whenever by an action of a State, whether through its 
legislature, through its courts, or through its executive or 
administrative officers, all persons of the African race are 
excluded, solely because of their race or color, from serving 
as grand jurors in the criminal prosecution of a person of 
the African race, the equal protection of the laws is denied 
to him contrary to the Fourteenth Amendment to the 
Constitution of the United States.” 

A custom seems to have grown up among some lawyers, 
particularly in the South, to move to quash the indictment 
whenever a Negro is on trial for a crime and there are 
no Negroes on the grand jury. With almost absolute 
uniformity, the State courts have held that there is no 
ground for quashing the indictment unless it is shown that 
Negroes were kept off the juries purposely and because of 
their race or color.*° The cases show also that, if a Negro 
is kept off the grand jury because of his race, there is 
ground for quashing the indictment. Texas has furnished 
far more of these jury cases than any other Southern State. 
Wherever the jury commissioners have betrayed in any 
way the fact that they kept Negroes off the juries because 
of their race, the indictment has been quashed. A few 
instances will suffice. In one case the commissioners said 
that they did not put Negroes on the jury because they 
considered them unfit; this was held *! to be in violation 


of the Fourteenth Amendment. When, again, they said 


- 280 


' AS JUROR 


that they kept Negroes off the juries because their pres- 
ence “would be offensive to the white jurors,” the indict- 
ment was quashed.°? In a county of 11,000 voters in 
Texas, about 1,000 of them were Negroes, of whom 600 
or 700 were competent to be jurors. No Negro had ever 
been on a jury there. The commissioners admitted that 
they would not put a Negro on if they knew it. The 
indictment was quashed.** In another case,°* they said 
they would not put Negroes on juries because it would 
create a conflict between the races which would injure 
the Negroes. This was held a sufficient admission to 
quash the indictment. In a case arising as late as 1903, 
the commissioners undertook to satisfy the Fourteenth 
Amendment by putting on a Negro. They put on a Negro 
who had either moved out of the county or was dead. 
This was held to be enough of a race discrimination to 
quash the indictment.>® 

No matter how large a percentage of the population 
is colored, if it is not proved that Negroes were kept off 
the jury because of race or color, there is no ground for 
objection. Thus, it was found that a Negro had never 
been known to sit on a grand jury in Bexar County, 
Texas, where there were 7,000 or 8,000 possible jurors, 
of whom 600 or 700 were colored. It was not proved, 
however, that they were kept off on account of race or 
color, and it was held that there was no ground for 
quashing an indictment.*® 

The following interesting case arose in Utah in 1900: 
A white person refused to serve on a jury with a Negro, 
and wrote a note making a complaint. The Negro was 
thereupon excluded from the jury. Later, the Negro 

251 


NEGRO IN COURT ROOM 


brought an action against the white man to recover dam- 
ages to the extent of the jury fees. The court held ** that, 
while color was not a test of one’s fitness to be a juror, a 
written objection to serve on a jury with a Negro is no 
ground for an action for damages by a colored man. 

The latest case of race distinction in juries comes 
from Oklahoma. There were four Negroes on a jury, and 
for that reason the judge discharged the jury. He said 
that the State had separate cars, separate schools, and 
separate tables for Negroes and whites, and “he would 
not insult white men by making them serve on a jury with 
Negroes.” The case is so recent as to be reported, as yet, 
only in the newspapers.*® | 

The constitutional right of the Negro to serve on a jury 
or to be tried before a jury composed, in whole or in part, 
of Negroes, is well expressed in a recent Texas case *® as 
follows: “ It is not a question as to the right of a Negro, or 
any number of Negroes, to sit on a grand jury, that the 
Fourteenth Amendment to the Constitution of the United 
State was intended to provide for; but it was intended, 
where a Negro was on trial, to prevent discrimination 
against the Negro race in the formation of the grand jury, 
which presented the indictment, and only in case Negroes 
are intentionally excluded from the grand jury is he de- 
nied the equal protection of the laws. It was never in- 
tended by the Fourteenth Amendment to guaranty a Negro 
defendant a full Negro grand jury, or to guaranty to him 
any particular number of grand jurors, but it was in- 
tended to prevent intentional exclusion from the grand 
jury.” 


252 


AS JUROR 


Actual Jury Service by Negroes in South 


In treating the Negro as a juror, the writer departed 
from the habit of confining his discussion to the race dis- 
tinctions manifested in statutes and judicial reports. As 
he went through the statutes and reports, these questions 
arose in his mind: Do Negroes actually serve on the juries 
in those communities where they are numerous? If so, 
what satisfaction have they given? In order to obtain an- 
swers to these questions, he sent out letters to the clerks 
of court in every county in the Southern States in which 
Negroes constituted one-half or more of the population in 
1900. Over three hundred letters were sent out contain- 
ing the following inquiry: “I wish to know to what ex- 
tent Negroes actually serve on juries, how Negro jurors 
are regarded by the court and the people at large, whether 
the number of colored jurors has increased or decreased 
in late years, what has been the experience of your county 
as to the satisfaction of colored jurors?” Of course, as 
many replies were not received; but the replies that were 
received indicate the extent of Negro jury service in the 
Southern States. These replies will be quoted from freely 
in each case, the State and the number of Negroes and 
white people in the particular county will be given, but 
not the name of the county. 

Alabama.—County No. 1, 10,000 white people, 13,000 
Negroes: “ Negroes are not allowed to sit upon juries in 
this county. It sometimes happens that names of Negroes 
are placed in our jury-box by mistake on the part of the 
_ jury commissioners, and are regularly drawn to serve as 
jurors; this, however, is a very rare occurrence. Once in 

203 


&: 
: 


NEGRO IN COURT ROOM ; 


the past four years, a Negro was drawn as a grand juror 
(by mistake) who appeared and insisted upon the court’s 
impaneling him with other jurors, which was done in ac- 
cordance with law, the court having no legal right to dis- 
charge or excuse him. My recollection is he served two 
days, when he was taken out at night and severely beaten, 
and was then discharged on his own petition by the court. 
This will convey to your mind that Negro jurors are not 
very wholesomely regarded and tolerated in this county. 
The fact is, Negroes have never been or never will be 
allowed to sit on juries in this county.” 

County No. 2, 5,000 white people, 21,000 Negroes: “I 
have lived in this county for more than sixty-six years, and 
we have never had a Negro juror in that time, nor do I 
ever expect to see one in the jury-box in this county. Our 
adjoining counties have all had them, a number of years 
ago.” 

County No. 3, 5,000 white people, 27,000 Negroes: 
“Negroes do not serve on juries in our courts. Such a 
state of affairs would be considered by the people of this 
county as farcical. The Lord defend us from having 
jurors of a race of people who are absolutely without re- 
gard for an oath.” 

Arkansas.—County No. 1, 1,800 white people, 12,600 
Negroes: “No Negroes serve in this county on regular 
juries. Sometimes when hard to obtain white jurors, a 
few Negroes may be taken in cases in J. P. Courts, but 
not often. Even this habit is smaller than formerly, fall- 
ing off every year. Colored jurors [are] not looked upon 
as intelligent, and very few as honest and possessing integ- 
rity, and they, as a rule, are also uneducated.” 

: 254 


AS JUROR © 


County No. 2, 14,000 white people, 29,800 Negroes: 
“No Negroes have served on juries in the court of this 
county since 1894. Prior to that time it was a common 
thing for them to be in the majority. I believe the Ne- 
groes are fairly well pleased with the verdicts of all white 
jurors, as the question is nearly always propounded to the 
juror, when it is a Negro defendant: ‘ Would you give the 
defendant the same consideration as if he was a white 
man?’ ” 

Florida.—County No. 1, 17,000 white people, 22,000 
Negroes: “ It has been many years since a Negro sat upon 
a jury in this court, and the probability is, it will be many 


“oe 5 


more. Negroes are not regarded as good jurors, and I be- 


heve it to be a fact that a Negro would prefer being tried 
by a white jury than a mixed jury, or a jury composed 
wholly of Negroes; this applies to both civil and criminal 
matters.” 

County No. 2, 11,000 white people, 12,000 Negroes: 
“ Negroes do not sit on the jury in this county, and have 
not since the days of ‘ Carpet-Bag Rule.’ I do not think a 
county in this State permits a Negro juryman.” 

County No. 3, 6,000 white people, 8,000 Negroes: “ Ne- 
gro jurymen or other officers are a thing of the past in our 
county and State. The oldest person can hardly recall 
the time when we had such in our county, with the excep- 
tion of a very few years just after the war.” 

County No. 4, 9,000 white people, 15,000 Negroes: 
“. . in the circuit court of the State it is very seldom 
that a Negro serves on the jury. Negroes, as a rule, are 
not good jurors, for the reason that they are usually very 
ignorant and can be easily influenced by others in the 

255 


NEGRO IN COURT ROOM 


rendering of their verdict. The Negro jurors, so far as 
the State courts are concerned, are almost eliminated. In 
the Federal courts of the State, a large number of Negroes 
serve on the juries... .” 

County No. 5, 2,300 white people, 2,700 Negroes: 
“The laws of this State require that the county commis- 
sioners select not less than 290 nor more than 310 ‘ persons 
of approved integrity, fair character, sound judgment and 
intelligence’ to serve as jurors. Therefore, because most 
of the elder Negroes are illiterate and because most of the 
younger ones that remain here are of other than fair char- 
acter, there are but few Negroes, about one per cent., whose 
names are drawn or selected to go into the jury-box. If 
one is drawn as juror... he serves as such juror, and 
no one has ever objected to one so far as I know of. My 
experience covers a period of ten years, during which time 

. . we have had only two Negroes drawn as jurors. No 
person has ever appealed a case on account of not having 
a Negro on the jury, nor has there been anything said out- 
side on account of the practical elimination of the Negro 
from jury duty.” 

Georgia.—County No. 1, 5,000 white people, 24,000 
Negroes: “‘ No Negroes serve on our jury. There are no 
Negro names in the jury-box.” 

County No. 2, 5,900 white people, 6,800 Negroes: “ No 
Negroes have ever been placed in the jury-box in this 
county. They are not regarded as competent or reliable as 
jurors, hence they have not [been] tried as such in this 
county.” 

County No. 3, 5,000 white people, 12,000 Negroes: | 
“ Negroes do not serve as jurors in this county, for several 

256 


AS JUROR 


reasons to wit: Incompetency, strong prejudices, super- 
stitiousness, and general unfitness in regard to equity. ... 
It happens frequently they are drawn and serve on juries 
in what we term here United States courts... .” 

County No. 4, 1,500 white people, 8,800 Negroes: 
““ Negroes do not serve on the juries in this county... . 
None of the Negroes in this county have ever been placed 
in such [jury] boxes.” 

County No. 5, 4,000 white people, 9,000 Negroes: “ We 
do not have Negroes as jurors; we tried them and found 
them incompetent and otherwise disqualified.” 

County No. 6, 7,000 white people, 11,000 Negroes: 
“No Negroes serve on the jury in this county.” 

County No. 7, 4,800 white people, 5,000 Negroes: 
“Not a blooming one [Negro juror], and not likely to be.” 

County No. 8, 2,000 white people, 5,800 Negroes: 
“There are no Negro jurors in this county.” 

County No. 9, 6,000 white people, 7,000 Negroes: “I 
have lived here all my life and do not know that there has 
been any Negro who has served on the jury in this county. 
IT am quite sure there has been none for the past 20 or 30 
years.” 

County No. 10, 2,500 white people, 4,000 Negroes: 
. . . There has never been a Negro juror to serve in this 
country nor any other county surrounding this to my 
knowledge. We revise our jury-boxes biennially, and 
never have yet put a Negro’s name on the list of jurors. 
And I think this is the practice all over the State. I am 
satisfied if one should be put on any jury that the white 
men on would flatly refuse to serve at all... .” 

County No. 11, 5,000 white people, 6,000 Negroes: 

18 257 


ce 


NEGRO IN COURT ROOM 


“. . There is no record of Negroes ever serving as jurors 
in this county.” 

Kentucky.—No replies’ have come from the seven 
counties of Kentucky in which Negroes constitute a large 
percentage of the population. But the following is quoted 
from a letter from the Assistant Attorney General of the 
State: “‘ Negro jurors are sometimes selected in various 
parts of the State, and I presume all over the State. 
T'wenty years ago the custom was more prevalent than at 
present of putting Negroes on the juries. They were the 
best class of Negroes, and I am reliably informed that in 
various parts of the State the Negroes themselves re- 
quested to be left off the juries, which may account for 
the fact that the practice seems to have fallen into dis- 
99 ; 

Louisiana.—Parish No. 1, 3,900 white people, 12,700 
Negroes: “. 


use 


. we now have no Negroes to serve on the 
jury here at all. Some years ago we had Negro jurors, 
but they proved so unsatisfactory that they were grad- 
ually dropped out and for several years [we] have had no 
Negroes at all.” 

Parish No. 2, 8,800 white people, 11,300 Negroes: 
. . » Negroes serve as jurors in this parish to a limited 
extent. The jury commissioners, when they know of an 
exceptionally good, honest, sober and industrious Negro, 
have no objections to placing his name in the jury-box. 
It is true, however, that the number is very limited, 
owing to the fact that very few Negroes will come to the 
standard as far as the above qualifications are concerned. 
Out of the 300 names in the jury-box from which we draw 
our juries, there are about a dozen Negroes. The Negroes 
258 


{3 


AS JUROR 


as jurors do not give any trouble; they always follow the 
suggestions and advice of the white jurors.” 

Parish No. 3, 11,000 white people, 17,800 Negroes: 
“.. . In this parish Negroes have served on both our 
grand and petit juries ever since the Civil War. Only the 
very best of our Negroes are drawn on the jury; they 
usually constitute about one-half of the panel on the petit 
jury and on the grand jury they are always represented, 
but in a much smaller proportion. The number of Negroes 
with us fit for jury service is not increasing as one would 
think would be the case considering their advantage for an 
education. They render very good service, rather prone to 
convict in serious personal injury cases, inflict capital pun- 
ishment more readily than white juries and generally want 
all law enforced, especially against bad men of their own 
race, as they know this is their best protection.” 

Parish No. 4, 2,000 white people, 13,700 Negroes: 
“.. . we have had one Negro on the petit jury the last 
criminal term of court in a murder case of another 
Negro. He is the only Negro that has sat on the jury for 
two or three years in our parish. We do not allow any 
Negroes to sit on the grand jury in our parish. There are 
three names of Negroes in the jury-box that we draw our ~ 
general venire from, as well as I remember, possibly one or 
two more, but not more than that number, as well as I 
remember. We used to have as many Negroes as white 
jurors here ten or twelve years ago.” 

Mississippi.—County No. 1, 4,000 white people, 31,- 
000 Negroes: “. . . Negroes do serve on juries in our 
circuit courts, also in our magistrate’s court. As to the 
extent Negro jurors serve Negro jurors are decreasing in 

259 


NEGRO IN COURT ROOM 


late years. It requires certain qualifications to make them 
competent under the Constitution of the State of Missis- 
sippi, to-wit: Every male inhabitant of the State, except 
idiots, insane persons, and Indians not taxed, who is a citi- 
zen of the United States, twenty-one years old and up- 
wards, who resided in the State two years, and one year 
in the election district, or in the incorporated city or town 
in which he offers to vote, and who is duly registered, and 
has never been convicted of bribery, burglary, theft, arson, 
obtaining money or goods under false pretenses, perjury, 
forgery, embezzlement or bigamy, and who has paid, on or 
before the first day of February of the year in which he 
shall offer to vote, all taxes which have been legally re- 
quired of him, and is able to read any section of the Con- 
stitution of the State, or is able to understand the same, 
when read to him, is a qualified voter, and can be a mem- 
ber of either our grand jury or a petit jury if drawn as 
such. Our Negro jurors are either ministers or school 
teachers, with some farmers., The majority of them fail 
to pay their taxes, which disqualifies them from jury serv- 
ice. Negro jurors are not regarded by our courts as good 
jurymen, but we are compelled to use them when drawn 
and they are qualified to serve.” 

County No. 2, 8,000 white people, 11,700 Negroes: 
“, . Negroes sitting on jury and paying poll-tax is a 
thing of the past in my county. Only about 25 or 30 
[are] registered. Disfranchised on educational qualifica- 
tion.” | 

County No. 3, 3,000 white people, 23,000 Negroes: 
“In my judicial district there are five counties, in three of 
which Negroes serve upon the juries in about the propor- 

260 


AS JUROR 


tion that they are qualified under the law. The qualifica- 
tions for jurors are very strict in this State and compara- 
tively few Negroes can qualify legally. In lmited num- 
bers they make very satisfactory jurors when the rights of 
their people are involved. As a rule, a Negro does not 
hike to try a white man’s case; they are much more inclined 
to convict Negroes charged with crime than are the white 
jurors, and Negro defendants always challenge Negro 
jurors. In the ‘ Black Belt’ of Mississippi, a Negro can 
always receive a fair trial in the courts, but this is not so 
certain in the white counties. In the two counties where 
Negroes do not serve upon the juries, there are practically 
no Negroes qualified under the law, because none are reg- 
istered voters.” 

County No. 4, 6,000 white people, 18,000 Negroes; 
“We don’t have any Negro jurors at all in this county. 
We have very few registered Negroes in the county.” 

County No. 5, 7,000 white people, 7,000 Negroes: 
‘. . Negroes do sit on juries in this county at times. 
They have a right to serve as jurors when they have duly 


¢ 


registered and paid their tax and some other qualifica- 
tions. . . . But the Board of Supervisors draws the names 
of 200 or more persons on the first Monday of January 
in each year and puts them in a box, so many for each 
supervisor’s district. But of late years the supervisors 
have not put many names of Negroes in the jury-box; 
therefore, we have not had very [many] Negro jurors. 
But we have one or two Negro jurors nearly every term 
of our court [circuit court]... .” 

County No. 6, 8,000 white people, 28,700 Negroes: 
“The jury law in this State makes no discrimination on 

261 


NEGRO IN COURT ROOM 


account of race, color, or previous condition of servitude, 
and no man is excluded from the jury on account of his 
color. ... In some of the counties of the State, the 
boards of supervisors select some Negroes for jury service, 
but the great trouble is, there are comparatively few 
Negroes in any county, and none in some of the coun- 
ties, who can measure up to the qualifications prescribed 
by law. . . . The criminal element in Mississippi is com- 
posed largely of the Negro race, and as a matter of 
fact, the persons of that race charged with crime and the 
lawyers who defend them, the large majority of whom are 
of the white race, do not want Negroes on the jury, and 
Negroes are almost invariably challenged. If Negroes 
chance to be summoned on a special venire in a capital 
case with white men, they [the Negroes] disqualify to 
avoid service, sometimes by claiming that they are not 
registered voters, but generally by claiming that they are 
opposed to the death penalty. 

“The following incident happened in one of our courts 
and may help to shed some light on the subject-matter 
wanted: A Negro was indicted for manslaughter. He was 
too poor to employ counsel to conduct his case, and it not 
being a capital case, the court could not appoint counsel 
for him, and told him so. He said he would do the best 
he could without a lawyer, and the court told him of his 
rights under the law, that he could look over the jury, and 
of his right to challenge four of them if he was dissatisfied 
with the panel as it stood. There were four Negroes on 
the jury, and he very promptly advised the court that he 
was not satisfied; the court told him he had a right to 
object to four of them, and he very quickly told the court, 

262 


AS JUROR 


‘Ef dat is so, dem niggers can stand aside.’ They were 
excused by the court, and the sheriff was ordered to com- 
plete the panel from the very best citizens to be had, 
which was done, the jury being, when complete, all white 
men. The defendant addressed the jury in his own de- 
fence and was acquitted. 


“In my county . .. we have had no Negroes on the 
jury for the past 15 years or more. We have some 30,000 
colored population in this county, . . . and we have only 


about 175 registered in the county. The board of super- 
visors, aS a rule, does not place their names in the box, 
for the reason that, as above stated, they will not serve if 
any way out of it can be found.” 

County No. 7, 1,000 white people, 4,000 Negroes: 
. we have no Negro jurors in this county at all.” 
County No. 8, 8,000 white people, 12,000 Negroes: 
“There are only 400 white qualified electors in this 
county, only about 30 qualified Negro electors. We never 
have a term of court without having several Negroes on 
it, besides we always have Negroes on the trial juries. 
It is not often that they sit on a case unless a Negro law- 
yer has one side of it. They do not believe in convicting 
one of their color. They are objectionable in every sense 
of the word. They are not regarded by the other mem- 
bers of the jury. Negro jurors are on the increase in re- 
cent years... .” 

County No. 9, 4,000 white people, 12,000 Negroes: 
“No Negroes have served on jury in this county since 
Republican party.” | 

Missourt.—County No. 1, 24,000 white people, 4,500 
Negroes: “. . . As far as I am informed, and certainly 

263 


ce 


NEGRO IN COURT ROOM 


since I have been connected with the court here, no Ne- 
groes have served as jurors either in our court or in any 
justice of the peace court in this county. While probably 
under our laws Negroes would be legal jurors, the county 
court of this county will not draw them as jurors, and 
the Sheriff, when he has to get jurors, will not sum- 
mon them. And I do not believe our lawyers here would 
permit a Negro to remain on a jury before which they 
would have to try a case. Further, I am sure that no 
white man here would serve on a jury with a Negro, even 
though his refusal to so serve would subject him to a 
jail sentence... .”” 

County No. 2, 21,000 white people, 4,000 Negroes: 
“.- we have never known of a Negro juror\in.. .” 
county.” 

County No. 38, 28,000 white people, 4,700 Negroes: 
“ Negroes never have this burden heaped upon them in this 
State.” 

County No. 4, 540,000 white people, 35,500 Negroes: 
“We do not have many Negro jurors. I have occupied 
this post but six months, and in that time we have had but 
two Negroes called for service. Our jury canvass is made 
biennially. All names placed in the wheel are taken just 
as drawn from the same on orders from the various divi- 
sions of court. A few of the more intelligent Negroes are 
placed on the jury list. I made inquiry when two Negroes 
served on a jury last week. The other jurors did not seem 
to feel any antipathy. Of course, a little surprise was 
manifested at seeing them in court when their names were 
called. Neither the attorneys for the plaintiff nor [for] 
the defence challenged them but accepted them on the 

264 


AS JUROR 


jury. My predecessors never placed many of the Negroes’ 
names in the wheel as I understand from them.” This 
letter was from the jury commissioner, not the clerk of 
the court. 

North Carolina.—County No. 1, 6,800 white people, 
8,000 Negroes: “. . . of late years very few Negroes 
serve on the juries in this county for the reasons that they 
are an illiterate race and moral character not what it 
should be. Further, he is easily influenced, deciding with 
a juror whom he may like instead of weighing the evi- 
dence and deciding accordingly. The number of Negro 
jurors has decreased for the past few years on account of 
the Negro of to-day [being] morally not as good as the 
Negro of several years ago.” 

County No. 2, 11,000 white people, 19,000 Negroes: “I 
will say that Negroes do not serve on the jury in this 
county and have not since we, the white people, got the 
government in our hands. When the Republican party 
was in power Negroes were drawn, both regular and _talis 
jurors, and not one out of one hundred was a competent 
juror, but, strange to say, when a Negro was on trial, he 
would always prefer the white men to try his case.” 

County No. 3, 5,800 white people, 8,300 Negroes: 
“ Negroes occasionally serve on juries in... county, 
but not to as great extent as they did before the passage 
of the Amendment [the suffrage amendment in 1900]. 
The County Commissioners have been more particular 
about the names that are left in the box from which jurors 
are drawn. Only the best, most reliable and most intelli- 
gent Negroes are left in the box. Sometimes it happens 
that a few are called as talismen, but not then until the 

265 


NEGRO IN COURT ROOM 


sheriff has exhausted his best efforts to get white men. 
Those called are very apt to be good, reliable men, and 
with a majority of white men in the jury-box are not dis- 
posed or able to do wrong. My experience as clerk for 20 
years is that they make good jurors, and are apt to be 
disposed, in criminal actions, to execute the law even 
against their own race. Judge ... says that white men 
on the jury are everywhere disposed to lean toward a 
Negro litigant, especially if the Negro is of the old-class, 
before-the-war Negro gentleman and the white man is of 
these later days ‘common trash.’ I am told by the judges 
that in some counties the sheriffs would not dare to call a 
Negro as a talisman even, but, as I have said, we have 
them not very frequently and without complaint. I no- 
tice that the opposing lawyers are slow in challenging them 
when so called... .” 

County No. 4, 12,600 white people, 13,100 Negroes: 
. Negroes do not serve on juries in our County, nor 


(<9 


are they allowed to vote or take any rh in county or 
municipal affairs. . . .” 

County No. 5, 5,700 white people, 6,700 Negroes: “A 
colored man has never served on the jury in this county, 
neither has a colored man ever voted in this county.” 
County No. 6, 6,000 white people, 13,000 Negroes: 

. We still have some Negro jurors at every term of our 


courts, but not near so many. as in former years. Our 


ce 


County Commissioners ... are very careful in putting 

the names of only good, respectable Negroes in the jury 

box. The consequence is we have very few Negroes on 

our juries, but those we have are well disposed and the 

most intelligent Negroes of the county, and make very 
266 


AS JUROR 


acceptable jurors. I have been struck with the fact that 
our lawyers in selecting the jury for both criminal and 
civil cases, seldom ever object to the Negroes who are on 
the regular panel. If this is always kept up, with only 
the best and most intelligent Negroes in the county in 
the jury-box, all will be well and our people will not ob- 
ject. But in former years, when sometimes the majority 
of the jury would be Negroes, there was great dissat- 
isfaction.” 

Oklahoma.—County No. 1, 15,000 white people, 2,400 
Negroes: “ Negroes have served on both grand and petit 
juries nearly every term of court with the exception of the 
last two terms of the district court. There are some Negro 
names in the box, but they did not happen to be drawn by 
the Sheriff or myself. The men who have sat have given 
satisfaction to the litigants, but have been objectionable to 
the other jurors. Where it has come to a locked-up jury, 
and where they have to eat and be closely confined with 
the white man, I have heard some complaint. The court 
and officials who are all white Republicans—except the 
sheriffi—treat Negroes with utmost fairness.” 

South Carolina.—County No. 1, 9,000 white people, 
19,000 Negroes: “. . . I have only been in office for [the] 
last four years, but since I have been in office I have 
had a good many Negroes on juries. Year before last I 
had Negroes on juries three consecutive courts, and every 
year I have several of them. We always put the names 
of those qualified to act in our jury-box, but it is a bad 
condition of affairs when you go over the Negroes of the 
county, and find how few are qualified to act. The Negro 
jurors have increased in our section.” 

267 


NEGRO IN COURT ROOM 


County No. 2, 5,000 white people, 17,000 Negroes: 
, . The number of Negro jurors has decreased in late 
years. I do not think that a great number of Negro 
jurors would impress very favorably the court and the 
people at large.” 

County No. 3, 10,000 white people, 19,000 Negroes: 
« _. I do not remember ever to have seen a Negro on 
the jury in this county. I am told, however, that one 
served occasionally for only awhile after 1876.” 

County No. 4, 18,000 white people, 41,000 Negroes: 
“In my experience covering ten years or more, I find it 
difficult to get a large array of competent jurors. We are 
careful and painstaking in making our lists; therefore, 
we never allow a Negro to serve for the reason of the gen- 
eral moral unfitness, and general depravity.” 

County No. 6, 20,000 white people, 22,000 Negroes: 
“No Negroes serve on the jury in the county courts in 
this county.” 

Tennessee.—No information about Negro jury service 
in Tennessee has been obtainable. 

Texas.—County No. 1, 6,300 white people, 7,800 
“. . As to Negro jurors . . . as a rule, in the 
County Court about one-tenth are Negroes, and they are 
rarely ever discriminated against. I do not recall a case 
where they have been rejected on account of race or color . 


Negroes: 


by white men. As a rule, they are not so acceptable to 

Negro litigants as they are to those of the other races. 

There are a larger per cent. of Negroes in the district 

court, and there is rarely any criticism. In fact, no preju- 

dice. exists here against them as jurors, largely from the 

fact that only our best Negro citizens are drawn on the 
268 


AS JUROR 


juries. ... 1 think the per cent. of Negro jurors has 
increased. They are simply accepted or struck off as any 
other citizen. I believe more are accepted by white than 
colored litigants. ‘They have served on some of our very 
important cases... .” 

County No. 2, 14,000 white people, 9,000 Negroes: 
“We haven’t had any Negroes on the jury in. . . county 
for several years. ‘They used to have a few on the jury 
several years ago, so I have been informed, but none in the 
last few years.” 

County No. 3, 21,000 white people, 16,000 Negroes: 
“We do not use Negro jurors in our State or county courts 
at all.” | 

County No. 4, 7,000 white people, 8,000 Negroes: 
“.. . It has been the rule of . . . county to have Negroes 
on the grand and petit juries. They have given satisfac- 
tion. ‘The colored jurors are represented by about 25 
per cent. of the jurors.” 

The cases quoted from in the earlier part of this 
chapter show even better than these letters the attitude 
of Texas toward Negro jurors. 

Virgimia.—County No. 1, 6,700 white people, 8,500 
Negroes: “ No Negro juror in this court for ten years, 
and I don’t think that there will ever be... .” 

County No. 2, 3,900 white people, 5,500 Negroes: 
“., . from reconstruction days up to ten or twelve years 
ago a few Negroes served on the jury of this county. My 
impression is ... that they made very little impression 
in the jury, and they were completely dominated by white 
- men in said bodies, who were, of course, greatly in the 
majority. At this time no Negro jurors are drawn at all.” 

269 


NEGRO IN COURT ROOM 


County No. 3, 3,000 white people, 6,000 Negroes: 
“. . there are no Negroes on our jury list. On several 
occasions when we had to make up a jury we have put 
a few on. The impression is here that it does not do to 
mix the races even in the jury-box.” 

County No. 4, 17,900 white people, 19,200 Negroes: 
* Negroes under our Constitution are not debarred from 
serving as jurors in Virginia, but owing to the nature and 
disposition of the Negro to follow and not lead, we seldom 
place them on trial juries. The number of colored jurors 
has decreased in the last ten years.” 

County No. 5, 3,200 white people, 4,900 Negroes: 
“Negroes have for a number of years been serving on 
the juries in this county, and, as far as I have been able 
to learn, have generally given satisfactory service... . 
There is hardly ever a jury drawn without some Negroes 
being on it. Of course, the judge selects those Negroes 
who are best qualified for the service. . . . Naturally, the 
number of Negro jurors is not near so large as that of the 
whites, for the reason... that all jurors are selected 
with reference to their qualifications.” 

County No. 6, 4,000 white people, 4,800 Negroes: 
. we never have any Negroes on juries in my county. 
Haven’t had any for about fifteen years... .” 

County No. 7, 10,000 white people, 13,000 Negroes: 
. . . Negroes do not serve on juries in this county, and 
it has been about twenty years since they did jury service 
here.” 

County No. 8, 2,300 white people, 4,400 Negroes: 
“Since the adoption of the new Constitution for this — 
State . . . Negroes no longer serve as jurors in this coun> 

270 


ce 


6 


AS JUROR 


ty. Prior to that time they appeared regularly in our 
courts, and made good jurors in the civil as well as crim- 
inal business. Of course, in selecting them, only the best 
of their race were chosen. And I can’t recall an instance, 
with an experience of sixteen years as clerk of the courts, 
that any objection was ever raised against them as jurors.” 

County No. 9, 5,500 white people, 5,600 Negroes: 
“We don’t have colored men on jury in this county.” 

County No. 10, 9,000 white people, 13,600 Negroes: 
“Negroes are not allowed to serve on juries in this 
county.” 

County No. 11, 1,100 white people, 3,700 Negroes: 
“We have not had any Negroes to serve on the jury in 
this county for twelve or fifteen years, and when they did, 
they gave very poor satisfaction.” 

Summary: With such incomplete statistics, conclu- 
sions as to the actual service of the Negro as a juror can 
hardly be more than guesses. Some of the clerks of court 
say that the number of Negro jurors in their counties is 
increasing; others, that it is decreasing. Some say that 
race does not come into the consideration of fitness for 
jury service; others, that Negroes are not allowed on ju- 
ries at all. Some say that Negro jurors have given satis- 
faction; others, that they have been scarcely more than 
figureheads following the lead of white jurors. Several 
of the clerks think that Negro litigants are reluctant to 
have Negro jurors sit on their cases. Some feel that 
Negro jurors are more prone to convict than white jurors 
are. It is undoubtedly true that there are not as many 
Negroes qualified for jury service under the laws of the 
Southern States as there were twenty-five years ago, say. 

a271 


NEGRO IN COURT ROOM 


Usually one must be an elector to be qualified for jury 
service. The great majority of the Negroes have been un- 
able to satisfy the suffrage tests and have been disfranchised. 
They are, consequently, not electors and not eligible to 
serve as jurors. Hence, if the selection of jurors is con- 
ducted with absolute impartiality, there will be com- 
paratively few Negroes retained. 


SEPARATE COURTS. 


South Carolina appears to be the only State which 
has ever provided a separate court for the trial of cases in 
which Negroes have interests at issue. ‘That was called 
the District Court, provided for by a statute ®° approved 
December 19, 1865, which statute was repealed Septem- 
ber 21, 1866; so the law was in force less than a year. 
The seventh section of the act of forty-nine sections is: 
“The District Court shall have exclusive jurisdiction, sub- 
ject to appeal, of all civil cases where one or both of the 
parties are persons of color, and of all criminal cases 
wherein the accused is a person of color, and also of all 
cases of misdemeanor affecting the person or property 
of a person of color, and of all cases of bastardy, and of 
all cases of vagrancy, not tried before a Magistrate. .. .” 
The Magistrate was given jurisdiction over small disputes, 
controversies and complaints that arose in his neighbor- 
hood between persons of color, or between persons of color 
and white persons, and of petty misdemeanors committed 
by or toward persons of color, between master and servant, 


between master and apprentice, and between employer and . : 


laborer, and civil suits involving not over twenty dollars 
Q02 


BR pn 


DIFFERENT PUNISHMENTS 


in which a person of color was a party. An indictment 
of a white person for the homicide of a person of color 
had to be tried in the regular superior court; and so had 
all other indictments in which a white person was accused 
of a capital felony affecting the person or property of a 
person of color. In these forty-nine sections the juris- 
diction of this special court for persons of color is worked 
out in detail; but inasmuch as the law was in force less 
than a year and was one of the ephemeral “ Black Laws” 
already considered, there is no need to go into it further. 
Suffice it to say that in the South at present, as in other 
sections, the people of all races and colors have their rights 
adjudicated by the same court. 


DIFFERENT PUNISHMENTS 


Alabama, Florida, and Georgia prescribe a heavier pun- 
ishment for fornication and adultery between white peo- 
ple and Negroes than between members of the same race. 
On first consideration this appears to be a case of different 
punishment. As was said by the Supreme Court of Ala- 
bama **: “The fact that a different punishment is affixed 
to the offence of adultery when committed between a Ne- 
gro and a white person, and when committed between two 
white persons or two Negroes, does not constitute a dis- 
crimination against or in favor of either race. The 
discrimination is not directed against the person of any 
particular color or race, but against the offence, the na- 
ture of which is determined by the opposite colors of the 
cohabiting parties. The punishment of each offending 
party, white and black, is precisely the same.” 'The con- 

19 273 


NEGRO IN COURT ROOM 


stitutionality of these statutes as to cohabitation between 
persons of different races has been upheld by the Supreme 
Court of the United States.* 

The following are instances of race distinction in the 
matter of offences and punishment. South Carolina,®* in 
1865, said that a person of color who committed assault 
upon a white woman with intent to ravish her, or who had 
sexual intercourse with a white woman by impersonating 
her husband, should be guilty of a felony “ without benefit 
of clergy.” Florida ** made it a capital crime to assault 
a white female with intent to commit rape or to be acces- 
sory thereto. Kentucky ® provided that all persons, with- 
out distinction of color, would be subject to the same 
pains and penalties for felonies and misdemeanors, add- 
ing: “The laws now in force for the punishment of Ne- 
groes and mulattoes for rape on white women are hereby 
continued in force.” This was amended ®* in 1869, but 
the offence was still against white women. The race dis- 
tinction in these statutes les in the fact that heavy 
punishment was prescribed for an assault upon a white 
woman, but no such protection was accorded a Negro 
woman. 

South Carolina made it a felony “with benefit of 
clergy ” for a servant to steal a chattel, money, or valuable 
security to the value of ten dollars belonging to, or in the 
possession or power of his master or employer. It was an 
“aooravated misdemeanor” for a servant to steal such 
property below the value of five dollars. The servant had 
no right to sell any farm produce without the written evi- 
dence from his master or the District Judge or Magistrate | 
that he had a right to do so. But all such race distinc- 

a4 


DIFFERENT PUNISHMENTS 


tions in the matter of punishment passed away, as did the 
other “ Black Laws,” in 1866. 

There are certain statutes as to crimes which, though 
they do not mention the Negro in so many words, are 
thought by many to have peculiar application to him. 
The vagrancy laws of the Southern States, for instance, 
have been considered as directed primarily against Ne- 
groes. Some of the States made it a crime for one to sell 
cotton in bags between certain hours of the night. This 
was probably a result of the habit attributed to the Negro 
of hiding cotton in the jambs of the fences and woods in 
the daytime to take to the cross-roads store at night. Mis- 
souri,*? in 1903, made chicken-stealing a felony punishable 
by imprisonment for five years, or a fine of two hundred 
dollars. The next year, Kentucky ** passed the following 
statute: “That if any person shall steal chickens, tur- 
keys, ducks, or other fowls of the value of two dollars, or 
more, he shall be confined in the penitentiary not less 
than one nor more than five years. Whether this is an 
indirect race distinction or not, the writer will not take 
it upon himself to decide. 

Some of the States have enacted statutes to the effect 
that the punishment for the members of all races shall be 
the same for the same offence. Delaware ®® did so in 
1867. In Mississippi,” in 1865, Negroes were given the 
right to procure the arrest of a white person; but, if the 
arrest were false and malicious, the Negro must pay all 
the costs, be fined not over fifty dollars, and impris- 
oned not over twenty days. In 1867, however, a statute 
said that Negroes must have the same punishment as 
white people. South Carolina,"! as has been seen, re- 

275 


NEGRO IN COURT ROOM 


pealed all laws prescribing different punishment for 
Negroes. 

The following interesting bit of news is taken from an 
Associated Press report of July 21, 1909: “ Mobile, Ala— 
The commissioners -to-day established a curfew law for Ne- 
groes. Commencing to-night, all the blacks must be at 
home or in bed at 10 p.m. Any of them caught wandering 
at large will be locked up. This action is due to an 
epidemic of hold-ups perpetrated by Negroes.” 

A recent instance of race distinction in the court 
room seems to come from New York. A Pullman porter, 
named Griffin, was arrested in Montreal, charged with 
stealing a pocket-book, but the charge was not substanti- 
ated and he was released. He thereupon brought suit 
against Daniel F. Brady, who caused his arrest, and ob- 
tained a verdict for two thousand five hundred dollars in 
damages. The Supreme Court of New York reduced the 
damages from two thousand five hundred dollars to three 
hundred dollars. Upon an appeal by Griffin, the appellate 
division of the Supreme Court sustained the order reduc- 
ing the damages. The following is a part of the opinion 
of Judge Drugo of the Supreme Court *? whose order was 
sustained: “ You cannot say that he [Griffin] is just the 
same as a white man, when you come to say how much 
his name will suffer. He might suffer more. But, after 
all, what are the probabilities about it? Is it likely that 
when a colored man is arrested and imprisoned he feels 
just as much shame as a white man of any circumstance 
might ? 

“ T think if you were to take the Mayor of the city and 
arrest him he would feel very much more humiliated than 

a6 


it ee eo 
~ Ie ees 


NOTES 


this porter, from the fact that he was the Mayor and not 
a colored man, for if a colored man he might not feel 
quite as much humihation and shame. 

“In one sense a colored man is just as good as a white 
man, for the law says he is, but he has not the same amount 
of injury under all circumstances that a white man would 
have. Maybe in a colored community down South, where 
white men were held in great disfavor, he might be more 
injured, but after all that is not this sort of a community. 
In this sort of a community, I dare say the amount of 
evil that would flow to the colored man would not be as 
great as it probably would be to a white man.” 


: 
NOTES 


1 Laws of Ia., 1870, p. 21. 
2 Laws of Colo., 1897, p. 115. 
8 Laws of Md., 1872, p. 184, p. 184; 1876, p. 469. 
4In re Taylor, 1877, 48 Md. 28, at p. 33. 
5 Bradwell v. State, 1872, 16 Wall. 180 at p. 142. 
®U.S. v. Rhodes, 1866, Fed. Case No. 16,151. 
7 Laws of Ala., 1865-66, p. 98. 
8 Ibid., 1866-67, p. 4385. 
9 Dolan v. State, 1886, 81 Ala. 11, at p. 17. 
10 Kelly v. State, 1869, 25 Ark. 392. 
11 Art. XIV, sec. 2. 
12 Laws of Fla., 1865, pp. 35-36. 
13 Art. II, sec. 5, par. 4. 
14 Laws of Ky., 1865-66, pp. 38-39. 
15 Bowlin v. Com., 1867, 2 Bush (Ky.) 5. 
AS’ Art. Ii, see. 53. 
! Paar 


NEGRO IN COURT ROOM 


17 Laws of Miss., 1865, p. 83. 

18 Tbid., 1866-67, pp. 232-33. 

19 Laws of S. C., 1865, p. 286. 

20 Laws of Tenn., 1865-66, p. 24. 

21 Art. VIII, see. 2. 

22 Laws of Texas, 1866, p. 59; see Laws of Texas, 1866, 
pp. 131-32. . 

23 Hx parte Warren, 1868, 31 Vexas 1438. 

24 Laws of Texas, 1871, p. 108. 

25 Laws of Va., 1865-66, pp. 89-90. 

26 Tbid., 1866-67, p. 860. 

27 Statutes of Calif., 1863, p. 69. 

28 People v. Washington, 1869, 36 Calif. 658. 

29 Laws of Ind., 1865, p. 162. 

80 Thid., 1865, p. 161. 

31 Laws of Nev., 1864-65, p. 403. 

32 Laws of Wash., 1866, p. 91. 

88 Tbid., 1869, p. 103. 

34 Laws of W. Va., 1866, p. 85. 

85 Stat. L., 336, chap. 114, par. 4. 

36 Burns’s Annotated Revisal of 1901, II, sec. 3293. 

87 Pub. Acts of Mich., 1885, p. 132. 

38 Laws of N. Y., 1895, I, p. 974. 

39 Laws of O., 1884, pp. 15-16; 1894, pp. 17-18. 

40 Acts and Resolves of R. I., 1884-85, p. 171. 

41 Laws of Ark., 1866-67, p. 99. 

42 Laws of La., 1880, p. 52. 

43 Laws of Miss., 1866-67, p. 233. 

44 Laws of Tenn., 1865-66, p. 24. 

45\Tbid.,-p. 65. 

46 Tbid., 1867-68, pp. 32-33. 

47 Va. v. Rives, 1879, 100 U. S. 313; Hx parte Va., 1879, 
100 U. S. 339; Strauder v. W. Va., 100 U. S. 303; Carter v. 

278 


NOTES 


Texas, 1899, 177 U. S. 443; Rogers v. Ala., 1908, 192 
U.S. 226. 

48 Neal v. Del., 1880, 103 U. S. 370; Bush v. Com. of Ky., 
1882, 107 U. S. 110; Hx parte Murray, 1895, 66 Fed. 297; 
Smith v. State, 1895, 162 U. S. 592; Binyon v. U. 8S. 1903, 7é 
Se W 200. 

49 Carter v. Texas, 1899, 177 U.S. 448, at p. 447. 

50 Hastling v. Ark., 1901, 62 S. W. 584; Wilson v. Ga., 
1882, 69 Ga. 224; Green v. Ala., 1882, 73 Ala. 26; Ky. v. 
Jackson, 1880, 78 Ky. 509; Hicks v. Ky., 1881, 3 Ky. Law 
Rep. 87; Haggard v. Ky., 1881, 79 Ky. 366; Smith v. Ky., 
1896, 33 S. W. 825; La. v. Casey, 1892, 44 La. Ann. 969; La. 
v. Joseph, 1893, 45 La. Ann. 903; La. v. Murray, 1895, 47 La. 
Ann. 1424; Cooper v. Md., 1885, 64 Md. 40; Mo. v. Brown, 
1894, 119 Mo. 527; Bullock v. N. J., 1900, 47 At. Rep. 62; 
N. C. v. Sloan, 1887, 97 N. C. 499; N. C. v. Peoples, 1902, 
131 N. C., 784; N. C. v. Daniels, 1904, 46S. E. 748; S. C. v. 
Brownfield, 1901, 60 S. C. 509; Williams v. Texas, 1875, 44 
Texas 34; Cavitt v. Texas, 1883, 15 Texas Ct. of Ap. Rep. 
190; Carter v. Texas, 1898, 46 S. W. 236; Collins v. Texas, 
1900, 60 S. W. 42; Smith v. Texas, 1900, 58 S. W. 97; Parker 
v. Texas, 1901, 65 S. W. 1066; Hubbard v. Texas, 1902, 67 
S. W. 413; Carter v. Texas, 1903, 76 S. W. 437; Fugett v. 
Texas, 1903, 77S. W. 461; Martin v. Texas, 1903, 72S. W. 386. 

51 Whitney v. Texas, 1900, 59 S. W. 895. 

52 Kipper v. Texas, 1901, 62 S. W. 420. 

53 Leach v. Texas, 1901, 62 S. W. 422. 

54 Smith v. Texas, 1902, 69 S. W. 151. 

55 Smith v. Texas, 1903, 77 S. W. 453. 

56 Thompson v. Texas, 1903, 74 S. W. 914. 

57 McPherson v. McCarrick, 1900, 61 P. 1004. 

58 Raleigh, N. C., News and Observer, Feb. 17, 1910. 

59 Whiteny v. Texas, 1901, 63 S. W. 879. 

279 


NEGRO IN COURT ROOM 


86 Laws oi S. C., 1865, pp. 278-91; 1866, pp. 387-90. 

61 Pace and Cox v. State, 1881, 69 Ala. 231. 

62 Pace y. Ala., 1882, 106 U. S. 583. See also Ellis v. Ala., 
1868, 42 Ala., 525; Lord v. Ala., 1875, 538 Ala. 150. , 

63'Laws of S,) Oi, 1865; p. 271. . 


; 


64 Laws of Fla., 1865, p. 24. 
65 Laws of Ky., 1865-66, p. 42. 


66 Thid., 1869, p. 52. | | 
87 Laws of Mo., 1908, p. 161. q 
88 Laws of Ky., 1904, p. 83. ; 
69 Laws of Del., 1866-69, p. 161. | 


71 Laws of S. C., 1866, p. 405. 

72 Boston Post, May 22, 1909. The volume of New York 
reports containing this case is not yet accessible. It is 
referred to, however, in 117 N. Y. Sup., p. 116. ’ 


70 Laws of Miss., 1866-67, pp. 232-33. 
‘ 
. 


CHAPTER XI 
SUFFRAGE 


Tue Fifteenth Amendment to the Constitution of the 
United States, ratified on March 30, 1870, reads: “* The 
right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any 
State on account of race, color, or previous condition of 
servitude.” In the face of this unequivocal constitutional 
provision, it would seem impossible to have a legal race 
distinction in the matter of suffrage. It is plain that, if 
a State or the United States makes a law that in any way 
denies or abridges the right of a citizen to vote on account 
of his race, such an enactment is in violation of the 
Amendment. The only State or Federal statute or State 
constitutional provision involving a race distinction that 
would be valid under the Fifteenth Amendment would 
be one that did not amount to a denial or abridgment 
of the right to vote. For instance, a State might require 
white and Negro electors to cast their ballots in different 
boxes, or in different parts of the booth, or even in dif- 
ferent booths; or it might require them to register on 
different days, or before different registrars. If the Negro 
was given the same opportunity to register and vote as 
the white man, the requirements of separate registering 
and balloting would be race distinctions in the matter of 

281 


SUFFRAGE 


suffrage, but they would not be denials or abridgments 
of the right to vote and, hence, might be supported under 
the Fifteenth Amendment. Any such requirements have 
not been found in the State Constitutions or statutes; 
they are only suggested as possible race distinctions which 
might be permissible. | 

It follows, therefore, that the race distinctions to be 
considered in this chapter exist, not in conformity to law, 
as in the case of separate schools and public conveyances, 
but in defiance of law or by legal subterfuges, and are 
properly called discriminations. 


NEGRO SUFFRAGE BEFORE 1865 


The suffrage requirements as to race up to 1865 serve 
as a background for the events after that date. A review 4 
of the acts of territorial government and State Constitu- 
tions of the Territories and States of the United States 
reveals the following facts: Maine, Massachusetts, New 
Hampshire, Rhode Island, and Vermont appear not to 
have had any race distinctions in suffrage. Alabama, Ar- 
kansas, California, Colorado, Florida, Georgia, [linois, 
Indiana, Iowa, Louisiana, Michigan, Minnesota, Missis- 
sippi, Missouri, Nevada, Ohio, Oregon, South Carolina, 
and West Virginia never permitted any but white males 
to vote at any time between the Revolution and 1865. 
The Constitutions of Kansas? of 1855 and of Minnesota 4 
of 1857 permitted civilized Indians to vote, though the 
same privilege was not extended to Negroes. Kentucky,‘ 


in 1799, gave the suffrage to “free” persons, but ex- 


pressly excepted Negroes, mulattoes, and Indians. Tex- 
282 


NEGRO SUFFRAGE BEFORE 1865 


as,° in 1845, gave the right to vote to free male persons 
but excepted Indians not taxed, Africans, and descendants 
of Africans. 

Besides the above-named States which either made no 
race distinctions at all or else always made distinctions 
as to Negroes, several States, at one time or another, ex- 
tended a limited suffrage to Negroes. The Constitution 
of New York ® of 1821, giving the right to vote to male 
citizens, had the provision that “no man of color, unless 
he shall have been for three years a citizen of this State, 
and for one year next preceding any election shall be 
seized and possessed of a freehold estate of the value of 
two hundred and fifty dollars, over and above all debts 
and incumbrances charged thereon, and snall have been 
actually rated and paid a tax thereon, shall be entitled to 
vote at any such election.” There was no property test 
for white voters. The Constitution’ of 1846 had the 
same provision about Negro voters. The question of equal 
suffrage to Negroes was submitted ® separately in 1846, 
and rejected by a vote of 85,306 to 223,834. It was again 
submitted in 1860, with hke result, the vote being 197,- 
503 to 337,984. 

The Constitution of North Carolina® of 1835, as 
amended, provided that no free Negro, free mulatto, or 
free person of mixed blood, descended from Negro ances- 
tors to the fourth generation inclusive, though one ances- 
tor in each generation might have been a white person, 
should vote for members of the “senate or house of com- 
mons” of the State. Negroes who paid a certain poll 
tax were allowed to vote until this Amendment went into 
effect. Governor W. W. Kitchin,’® of that State, says: 

283 


SUFFRAGE 


“There were 21,000 free Negroes in North Carolina in 
1835, 4,000 of whom were entitled then to vote.” After 
1835 Negroes were not allowed to vote there again until 
after the War. 

The Constitution of Tennessee ** of 1834- provided that 
no person should be disqualified from voting in any elec- 
tion who was then by the laws of the State a competent 
witness in a court of justice against a white person. One 
cannot tell how many Negroes were qualified to vote 
under this provision. The Constitution of Wisconsin 1” 
of 1848 limited the privilege of voting to white per- 
sons, but the Supreme Court** of that State held in 
1866 that suffrage had been extended to Negroes by a 
vote of the people at the general election on November 
6, 1849. | 

Several States which at first allowed Negro freemen 
to vote later withdrew the privilege. Until the Revolu- 
tion, they were allowed to vote in every State except 
Georgia and South Carolina. Between 1792 and 1834, 
Delaware, Maryland, Virginia, and Kentucky denied the 
suffrage to Negroes. As has been seen, North Carolina 
permitted as restricted Negro suffrage until 1835. New 
Jersey took the suffrage from the Negro in 1807, Con- 
necticut in 1814, ana Pennsylvania in 1838; and Tennes- 
see, in 1834, limited the right to those Negroes who were 
competent as witnesses against white persons. New York, 
in 1821, required a very high property qualification not 
required of white persons.1* Wisconsin alone changed its 
law sc as to allow Negroes to vote on equality with 
white persons. New York tried twice to do so, but failed © 
each time. 

284. 


SUFFRAGE BETWEEN 1865 AND 1870 


In each of the acts of territorial government drawn 
up by Congress, suffrage was restricted to free white per- 
sons. This fact, together with the fact that the West Vir- 
ginia Constitution of 1861-63 also restricted the suffrage 
to white persons, tends to show the attitude of the 
National Government in the early days toward Negro 
suffrage. 


SUFFRAGE BETWEEN 1865 AND 1870 


In 1865, the only States that permitted Negroes to 
vote on the same footing as white persons were Maine, 
Massachusetts, New Hampshire, Rhode Island, Vermont, 
and Wisconsin. New York and Tennessee permitted a 
restricted Negro suffrage. 

The changes in the suffrage laws between 1865 and 
1870 indicate what might have taken place had not the 
United States interfered with the Fifteenth Amendment. 
The Reconstruction Constitutions }° of the Southern States 
in 1868 and 1869 extended the suffrage to Negroes. 
These Constitutions, however, did not express the will of 
the Southern white people at the time in regard to suf- 
frage. The Constitution of Maryland,'® of 1867, permit- 
ted only white persons to vote; and that of Nebraska,’ of 
- 1866-67, under which it sought admission to the Union, 

_ did not give the suffrage to Negroes. 

Negro suffrage was voted down in New York*® in 
1868, as it had been in 1846 and 1860, by a vote of 282,- 
403 to 249,802. By the act of territorial government of 
Colorado, of 1861, suffrage was restricted to white per- 
sons. But an act of the legislature *® of that Territory, 
enacted in November, 1861, seemed to extend the right 

285, 


SUFFRAGE 


to vote to Negroes. This was amended,?? however, in 
1864, by expressly excluding Negroes and mulattoes from 
the suffrage. The legislature of Connecticut *! of 1865 
proposed an amendment to the Constitution whereby Ne- 
groes would be given the right to vote, the same to be 
submitted to the people for their ratification Minnesota *? 
and Wisconsin,?* in 1865, submitted constitutional amend- 
ments providing for Negro suffrage. According to Rep- 
resentative Hardwick,** of Georgia, “ Negro suffrage was 
rejected by decisive majorities.” It was after the 1865 
Amendment had been defeated at the polls in Wisconsin 
that the Supreme Court of that State, as has been seen, 
held that Negroes had been given the right to vote by a 
law of 1849. 

The word “white” was stricken from the Constitu- 
tion of Iowa?® by the legislature of 1867-68, and this 
action was ratified by a vote of 105,384 to 81,384. Minne- 
sota 2° amended its Constitution in 1868 so as to extend 
suffrage to Negroes. On December 30, 1867, the word 
“white” was stricken from the election laws of Dakota 
Territory.?7 

On June 8, 1867, Congress passed, over the President’s 
veto, a bill first introduced in 1865 establishing Negro 
suffrage in the District of Columbia. Before its passage, 
provision had been made by Congress to submit the ques- 
tion to a vote of the people. The extension of suffrage 
to Negroes was rejected by a vote of 6,521 to 35 in Wash- 
ington City and 812 to 1 in Georgetown. In spite of this 
vote the Thirty-ninth Congress ordained Negro suffrage 
for the District. After four years, the government of the 
District was so changed that suffrage was taken from all 

286 


SUFFRAGE BETWEEN 1865 AND 1870 


the residents. In 1866, Congress established Negro suf- 
frage in all the Territories of the United States.?® 

The second section of the Fourteenth Amendment, 
proposed June 16, 1866, and declared in force June 28, 
1868, reads: “ Representatives shall be apportioned among 
the several States according to their respective numbers, 
counting the whole number of persons in each State, ex- 
cluding Indians not taxed. But when the right to vote 
at any election for the choice of electors for President 
and Vice-President of the United States, Representatives 
in Congress, the Executive and Judicial officers of a State, 
or the members of the Legislature thereof, is denied to 
any of the male inhabitants of such State, being twenty- 
one years of age, and citizens of the United States, or in 
any way abridged, except for participation in rebellion, 
or other crime, the basis of representation therein shall 
be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citi- 
zens twenty-one years of age in such State.” The Amend- 
ment did not prohibit the denial or abridgment of the 
right to vote on account of race or color, but provided that, 
if such right was denied or abridged, the State must 
suffer the consequence of having its representation in Con- 
gress reduced. One feels safe in saying that the purpose 
of the National Government in adopting this section of 
the Fourteenth Amendment was to induce the States, 
particularly the Southern States, to extend suffrage to the 
Negro. With the possible exception of Minnesota, no 
State appears to have heeded the warning between 1868 
and 1870. 

One cannot say what would have been the result had 

287 


SUFFRAGE — 


the National Government rested there—whether or not of 
their own accord the various States would have extended 
the suffrage to Negroes—because, within less than two 
years, the Fifteenth Amendment had deprived the States 
of any choice in the matter by providing that they must 
not deny or abridge the right to vote on account of race 
or color. 


SUFFRAGE BETWEEN 1870 AND 1890 


At the time of the ratification of the Fifteenth Amend- 
ment, in 1870, the following States still restricted the suf- 
frage to white persons: California, Colorado, Connecticut, 
Delaware, Indiana, Kansas, Kentucky, Maryland, Mich- 
igan, Nevada, New Jersey, Ohio, Oregon, and Pennsylva- 
nia. Illinois ® adopted a new Constitution in 1870 which 
omitted the word “ white.” Missouri ®° amended its Con- 
stitution on November 8, 1870, after the Fifteenth Amend- 
ment went into effect, by erasing the word “ white,’ and 
Virginia,*! in its Constitution of 1870, extended the suf- 
frage to “male citizens.” It is needless to say that all 
the Constitutions adopted since 1870 have omitted the 
word “white” from the suffrage qualifications, so it is 
not worth while to note the various Constitutions and 
Amendments that have been adopted since that date. 
But in some State Constitutions which have not been 
changed within the last forty years, one still finds the 
provision that only “white male citizens” are electors. 
This is true of Maryland.*? Attempts have been made to 
amend the Constitution by erasing the word “ white,” but 


the objection has been made that it is null and void **: 


anyway by the Fifteenth Amendment, and that it would 
288 


SUFFRAGE BETWEEN 1870 AND 1890 


be too expensive to call a constitutional convention or 
hold an election solely for the purpose of erasing a 
“dead ” word. ° 

The history of the ratification of the Fifteenth Amend- 
ment—the opposition it provoked and the means that had 
to be adopted to procure its ratification by the Southern 
States—is found in the records of Congress, newspapers, 
and political discussions of that day. Very little of it has 
been preserved in the laws of the States. In the follow- 
ing resolution by the legislature of Oregon ** is found 
one of the few traces of the opposition to the Amend- 
ment occurring in the laws of a State outside the 
South: | 

“Whereas, the State of Oregon was, on the fourteenth 
day of February, A.D., 1859, admitted into the Federal 
Union, vested with the right to declare what persons 
should be entitled to vote within her boundaries; and until 
she, by her voluntary act, surrenders that right, the Con- 
gress of the United States has no authority to interfere 
with the conditions of suffrage within the boundaries of 
the State of Oregon: and 

“Whereas, the Congress of the United States, by 
means of an arbitrary majority of votes acquired by the 
power of the bayonet, has sought to force upon the several 
States the so-called Fifteenth Amendment to the Federal 
Constitution, in direct violation of the terms under which 
the State of Oregon was admitted into the Sisterhood of 
States; therefore 

“Be it resolved by the Senate, the House concurring: 

“That the so-called Fifteenth Amendment is an in- 
fringement upon the popular rights, and a direct falsifica- 

20 289 


SUFFRAGE 


tion of the pledges made to the State of Oregon by the 
Federal Government. 

“ Resolved, that the said Fifteenth Amendment be and 
the same is hereby rejected. 

“ Resolved, that the Governor be requested to transmit 
copies of this resolution to the Secretary of State of the 
United States and to the Senators and Representatives 
from the State of Oregon in the Congress of the United 
States.” 

The probable explanation of this opposition of Oregon 
to the Fifteenth Amendment lies in its unwillingness to 
give the ballot to the Japanese, Chinese, and Indians in 
the State. 

The feeling of New York *® toward Negro suffrage in 
1870 appears to be different from that of Oregon. A 
statute was passed prohibiting any registrar or inspector 
of elections to demand any oath or ask any questions of 
a Negro different from what was demanded of white per- 
sons, or to reject the name of any colored person from 
registry except for the same causes as would make it his 
duty to reject the name of a white person. The violation 
of this statute was a misdemeanor, punishable by a fine 
of five hundred dollars and imprisonment for six months. 

In order to make the prohibitions of the Fifteenth 
Amendment effective, on May 31, 1870, two months 
after the ratification of the Amendment, Congress passed 
an Act,°* the first section of which reads: “ All citizens 
of the United States, who are or shall be otherwise quali- 
fied by law to vote at any election by the people in any 
State, Territory, district, county, city, parish, township, . 
school district, municipality, or other territorial division, 

290 


SUFFRAGE BETWEEN 1870 AND 1890 


shall be entitled and allowed to vote at all such elections 
without distinction of race, color, or previous condition 
of servitude, any constitution, law, custom, usage, or regu- 
lation in any State, Territory, or by or under its author- 
ity, to the contrary notwithstanding.” 

The fourth section of the “ Enforcement Act,” as the 
Act of 1870 was called, provided for the punishment of 
any person who should, by force, bribery, threats, intimi- 
dation, or other unlawful means, hinder, delay, or combine 
with others to hinder, delay, prevent, or obstruct any 
citizen from doing any act required to be done to qualify 
him to vote, or from voting at any election. 

In 1875, two inspectors of a municipal election in 
Kentucky were indicted for refusing to receive and count 
the vote of a Negro. The Supreme Court *’ of the United 
States, to which the case came by reason of a division of 
opinion of the Circuit Court, held that the Fifteenth 
Amendment did not confer the right of suffrage, but 
rather invested citizens with the right of exemption from 
discrimination in the exercise of the elective franchise on 
account of their race, color, or previous condition of servi- 
tude. The fourth section of the Act of 1870, by its lan- 
guage, did not confine its operation to unlawful discrim- 
ination on account of race or color and was, therefore, un- 
constitutional. The “ Enforcement Act” of 1870, like 
the Civil Rights Bill of 1875, failed in its desired effect 
because it was too far-reaching in its scope. Had the Act 
of 1870 been upheld, the Federal authorities would have 
taken complete control of all elections, State as well as 
Federal. 

The years between 1870 and 1890 are known for the 

291 


SUFFRAGE 


actual race distinctions in suffrage. Between 1870 and 
1877, the white people of the South were largely disfran- 
chised, not because of their race, but because of their 
participation in the War. After 1877, the Negroes were 
largely disfranchised by unlawful methods adopted by the 
white people of the South. If this were a history of the 
actual race distinctions in suffrage, it would be necessary 
to consider at length the “ tissue ballots,” the stuffing of 
ballot boxes, the intimidation of Negroes by the Ku Klux 
Klan and other bodies of white men, and other election 
devices and practices in the South at that time. But this 
study, as has been said before, is confined to the race dis- 
tinctions in the law, not those in defiance of the law. Out 
of all the suffrage irregularities of the period very little 
suffrage law was evolved. Few judicial decisions and no 
statutes bearing directly on the relation of race to suffrage 

have been found. | 
Some cases of intimidation of Negroes .at the polls 
reached the courts of record. In Lawrence County, Ohio, 
in 1870, for instance, two white men by threats of violence 
kept three Negroes from voting. One of the white men 
was convicted in the Federal court ** under the Act of 
1870, and imprisoned six months; the other was acquit- 
ted because he had not been heard to use threatening lan- 
guage. In 1871 a white man in South Carolina was con- 
victed in the Federal court *® for conspiring to keep a 
Negro from voting at a congressional election. The same 
year, in a contested election for mayor of Leavenworth, 
Kansas, the defeated candidate claimed that he would 
have been elected had not a number of Negroes been im- 
properly kept from voting. He did not show that they © 
292 


SUFFRAGE BETWEEN 1870 AND 1890 


had been in the ward thirty days as required by the elec- 
tion law of the State, and the court *° held that Negroes 
must satisfy the same requirements as to residence as 
other voters. In a State election in Louisiana, in 1872, 
it was claimed, upon the affidavits of four thousand voters, 
that the votes of ten thousand Negroes had been sup- 
pressed because of their race and color.*1 A tax collector 
in Delaware, in 1873, refused or failed to collect taxes 
from Negroes when the payment of taxes was a prerequi- 
site to voting. The Federal court ** held that it had juris- 
diction because the tax collector was a State officer and, 
thus, it was the State denying and abridging the right to 
vote on account of race. Over one hundred men were 
indicted in the Federal court of Louisiana in 1874 for 
intimidating Negroes at the polls.** ‘The same year the 
judges of the municipal election of Petersburg, Virginia, 
were indicted for refusing to allow a number of Negroes 
to vote.** In 1878, a Negro in Illinois who was denied 
the right to vote at a school election sued and recovered 
a hundred dollars damages.*® In Georgia, in 1844, sev- 
eral white men were convicted in the circuit court of the 
United States for intimidating, beating, and maltreating 
Negroes to keep them from voting. The Supreme Court *° 
held that Congress had power to regulate Federal elec- 
tions and could prevent such intimidation. 

It will be noticed that nearly all of the cases cited 
above are along the same line—intimidation of Negroes 
to keep them from voting. Several constitutional prin- 
ciples, however, relating to suffrage were evolved out of 
the cases decided during this period. In some of these 
cases a Negro was not a party at all. It was thought at 

293 


SUFFRAGE 


first, for instance, that suffrage was a right of citizenship 
and that the Fourteenth Amendment entitled every citi- 
zen to vote. Consequently, a proceeding was started in 
the courts of Kentucky in 1874 to establish the right of 
a woman to vote. The case went up to the Supreme 
Court *7 of the United States which held that the Con- 
stitution of the United States does not confer the right 
of suffrage upon anyone. Next, it was thought that the 
Fifteenth Amendment conferred the right to vote upon 
Negroes, but the case of United States v. Reese settled 
this point by deciding that the Amendment did not con- 
fer upon Negroes the right to vote, but the right not to 
be discriminated in voting on account of race, color, or 
previous condition of servitude. Despite the Fourteenth 
and Fifteenth Amendments, the principle remains that 
the individual States retain the right to prescribe the 
qualifications for voting so long as they do not discrim- 
inate against persons on account of race, color, or previous 
condition of servitude. 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


In 1890, a distinct departure was made in the develop- 
ment of the law of suffrage. For thirteen years, roughly 
speaking, the Negroes had been in a great measure dis- 
franchised by the illegal means already referred to. Ac- 
cording to the Constitutions and laws of the Southern 
States, the Negro had precisely the same right to vote as 
the white person. Yet he did not vote, or, if he voted, his 
ballot came to naught. The Southern white people, wear- 
ied of using underhand methods of eliminating the effect 

294 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


of Negro suffrage, turned to seek a method under the law 
to accomplish the same result. The Fifteenth Amend- 
ment seemed to offer an insuperable obstacle. The prob- 
lem was how to evade this constitutional provision. Speak- 
ing of this difficulty, the Supreme Court of Mississippi *° 
said: “ Within the field of permissible action under the 
limitations proposed by the Federal Constitution, the Con- 
vention [the Constitutional Convention of Mississippi, 
1890] swept the field of expedients to obstruct the exercise 
of suffrage by the Negro race.. By reason of its previous 
condition of servitude and dependency, this race had ac- 
quired or accentuated certain peculiarities of habit, or 
temperament, and of character, which clearly distinguished 
it as a race from the whites. A patient, docile people; 
but careless, landless, migratory within certain limits, 
without forethought; and its criminal members given to 
furtive offences rather than the robust crimes of the 
whites. Restrained by the Federal Constitution from dis- 
criminating against the Negro race, the Convention dis- 
criminated against its characteristics and the offences to 
which its criminal members are prone.” 

Beginning in 1890 the Southern States have, one by 
one, adopted new Constitutions or amended their old ones 
so as to change considerably the qualifications of voters. 
Suffrage amendments have been adopted by the Southern 
States in the following order: Mississippi,°® 1890; South 
Carolina,*! 1895; Louisiana,>? 1898; North Carolina,>* 
1900; Alabama,** 1901; Virginia,®®> 1901; and Georgia,** 
1908. Maryland *’ has made two separate attempts, one 
in 1905 and the other in 1909, to amend its Constitution, 
but has failed in both instances. Florida, Arkansas, Ten- 

295 


SUFFRAGE 


nessee, and Texas have not made any constitutional 
changes in the matter of suffrage which might be called 
“ Suffrage Amendments.” 

The phrase, “ the Suffrage Amendments in the South,” 
has been used so often that the idea prevails among those 
unfamiliar with the laws on the subject that suffrage quali- 
fications in the Southern States are fundamentally dif- 
ferent from those in other States. With the hope of mak- 
ing plain wherein suffrage laws in the South are similar 
to and wherein they differ from the corresponding laws 
of other States, a table of the qualifications of electors 
in all the States and Territories of the United States, in- 
cluding Alaska, Porto Rico, Hawaii, and the Philippines, 
is given (see pp. 322-339). The requirements for voters 
will be taken in the order given in the tables and consid- 
ered with reference to the ways in which they lend them- 
selves to race distinctions and discriminations. 


Citizenship 


In order to vote, one must be a citizen of the United 
States or an alien who has taken the formal step toward 
naturalization of declaring his intention to become a citi- 
zen, with the exception that, in a few States, an Indian 
who has severed his: tribal relationship may vote. This 
suffrage qualification does not easily lend itself to race 
distinction or discrimination. It lies within the power 
of the United States, not of the States, to say what alien 
residents may become citizens.5* If Congress says, as it 
does in the Chinese Exclusion Act,°® that Chinese not na- 


tives of this country cannot become citizens, it follows ~~ 


that they cannot demand of a State the privilege of vot- 
296 


eee 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


ing. At present, a statute ®° specially provides for the 
naturalization of aliens of African nativity and persons of 
African descent, requiring that the same rules shall apply 
to them as to free white persons. 

The only case that has been found involving the citi- 
zenship of a Negro arose in Michigan in 1872.%' A Ne- 
gro, born in Canada of parents who had been slaves in 
Virginia but who had gone to Canada in 1834, went to 
Michigan at the age of twenty. The question was whether 
he was a citizen of the United States and, so, entitled to 
registration as a voter. The Supreme Court of the State 
held that, when his parents went to Canada, they were no 
longer under the jurisdiction of this country. The son 
was not born of citizens of the United States, nor was 
he born under the jurisdiction of the United States, and, 
therefore, was not a citizen of the United States. 

The citizenship requirement in the Southern States 
is essentially the same as that in other States and cannot 
be said, in any way, to involve a race distinction. 


Age 


In all of the States and organized Territories an elec- 
tor must be twenty-one years of age or over. In the Phil- 
ippines the age limit is twenty-three. There seems to be 
no possible race distinction in the age requirement. It 
may be that, because of the less careful record of dates of 
birth among Negroes, more of that race are unable to 
prove that they are twenty-one years old; but this is only 
a question of evidence. 


29% 


SUFFRAGE 


Sex 


All except four of the States limit the suffrage to 
males. This requirement cannot possibly involve a race 
distinction. 


Residence 


All States and Territories require that the voter shall 
have resided for a certain length of time previous to the 
election in the particular State or Territory, in the County, 
and in the precinct, ward, town, or other political division 
in which he offers to vote. The residence in the State 
varies from three months to two years, in the County or 
its corresponding division from thirty days to one year, 
and in the precinct, ward, or town from ten days to one 
year. It is noticeable that in the Southern States the 
required residence is, as a rule, somewhat longer than in 
the other States. Alabama, Louisiana, Mississippi, North 
Carolina, South Carolina, and Virginia all require a resi- 
dence of two years in the State, while Rhode Island is the 
only State outside the South that requires a State residence 
of that length. Mississippi is the only State that requires 
a voter to be a resident of the precinct one year. Louisi- 
ana requires six months in the precinct, while thirty days 
is the favorite residence with the other States. 

The greater term of residence required in the South 
may lend itself to race distinction in case one race is more 
migratory than the other. If, for instance, the Negro is 
more apt to move about from place to place than the white 
person, more Negroes than whites will be unable to satisfy 
the residence qualification. 

298 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


Payment of Taxes 


The following States require the payment of poll taxes 
as a prerequisite to voting: Alabama, Arkansas, Florida, 
Louisiana, North Carolina, South Carolina, and Tennes- 
see. Of these Alabama, Arkansas, and North Carolina 
require the payment of the poll tax for only one year 
preceding the election; Florida, Louisiana, and Missis- 
sippi, for two years preceding; and Virginia, for three 
years preceding the election. Some States require pay- 
ment of both property and poll taxes; and some, only the 
latter. The law of Delaware is that the voter must have 
paid a county tax within two years, assessed six months 
before the election, not specifying whether it is a poll 
or property tax. Georgia provides that all taxes legally 
required since 1877 must have been paid six months be- 
fore the election. .Pennsylvania requires the payment of 
a State or county tax within two years to be assessed two 
months and paid one month before the election. South 
Carolina demands, not only the payment of the poll tax, 
but of all taxes for the preceding year. In the Philippines, 
the elector must satisfy other tests or show payment of an 
annual tax of fifteen dollars. 

The payment of taxes as a prerequisite to voting is not 
peculiar to the Southern States, such a requirement being 
found in Delaware, Pennsylvania, and the Philippines as 
well. The poll tax and the requirement of payment for 
more than the year next preceding the election are found 
mostly in the Southern States. In the Philippines alone, 
it appears, the payment of taxes is an alternative require- 
ment; that is, if one cannot satisfy this qualification, he 

299 


SUFFRAGE 


may, nevertheless, qualify under other tests; but in the 
States, he must not only show his payment of taxes but 
be qualified as well in other respects. 

In two ways this qualification lends itself to race dis- 
tinctions. In the first place, if Negroes are more shiftless 
and less inclined to pay their taxes than white people, 
more of them will be unable to satisfy this test. Secondly, 
if they are careless about preserving their tax receipts for 
one, two, or three successive years, they will be unable to 
prove the payment of taxes and, thereby, be disqualified 
to vote. , 


Ownership of Property 


The next qualification may be said to be in a sense 
peculiar to the Southern States, yet not entirely so. In 
Rhode Island, one must own property worth one hundred 
and thirty-four dollars on which taxes of the preceding 
year have been paid or must pay an annual rental of seven 
dollars to be entitled to vote for city councillors and to 
vote on questions of finances. In Alaska, to be entitled 
to vote in municipal elections, one must be the owner of 
substantial property interests in the municipality. In the 
Philippines, the voter must be able to satisfy other tests 
or else be the owner of property assessed at two hundred 
and fifty dollars. 

The property test in the Southern States is an alterna- 
tive of the educational tests. That is, if the applicant 
cannot satisfy the educational test but can satisfy the 
property test, he may register and vote; or he may do so 
if he can satisfy the education but not the property test. 
Unless special mention is made at the time, this will be 

300 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


understood in the following discussion of these two quali- 
fications. When it is said that such and such property or 
educational qualification is required, it is meant only that 
it is required in case its alternative cannot be satisfied. 

In Alabama, the property requirement is that the ap- 
plicant for registration be the owner or the husband of the 
owner of forty acres of land in the State in which they 
reside or of real or personal property worth three hundred 
dollars upon which taxes for the preceding year have been 
paid. In Georgia the requirement is forty acres of land 
in the State or five hundred dollars worth of property in 
the State. In Louisiana, the requirement is three hun- 
dred dollars worth of property and payment of the per- 
sonal taxes. South Carolina prescribes three hundred dol- 
lars worth of property on which the taxes for the preced- 
ing year have been paid. Of the Southern States which 
have altered their suffrage laws since 1890, Mississippi, 
North Carolina, and Virginia have not provided any per- 
manent property test. 

The property qualifications cause the disfranchisement 
of more of one race than of the other only in so far as the 
first is more shiftless and more delinquent in the payment 
of taxes than the other. If the Negro is given the same 
opportunity as the white to acquire property, he has an 
equal opportunity to register under the property clause 
of the suffrage laws. 


Educational Test 


In no sense is the educational qualification peculiar 

- to the Southern States. As early as 1855, Connecticut 

required of voters ability to read the State Constitution. 
301 


SUFFRAGE 


The present requirement, as amended in 1897, is ability 
to read the Constitution and statutes of the State in 
English. In 1857, Massachusetts added as a prerequisite 
to voting ability to read the Constitution of the State in 
English and write one’s name. The Constitution of Wy- 
oming of 1889 provides that the applicant for registration 
must be able to read the Constitution of the State. Cali- 
fornia, in 1894, required ability to read the Constitution 
in English and write one’s name. Similar requirements 
were made in Maine in 1893 and in Delaware in 1900. In 
the territorial possessions of the United States, a Ha- 
walian elector must read, speak, and write English or 
Hawaiian, and a Filipino must speak, read, and write 
English or Spanish. In the Philippines this qualification 
is an alternative of the ownership of property; in Hawaii 
and the States mentioned above the educational qualifica- 
tion is absolute. 

In the Southern States now to be considered, it is to 
be remembered that the applicant must satisfy either the 
education or the property test, not both. In Alabama he 

/ must be able to read and write the Constitution of the 
United States in English unless physically disabled. In 
Georgia he must be able to read and write in English the 
Constitution of the United States or of Georgia, or if 
physically disabled from reading and writing, to “ under- 
stand and give a reasonable interpretation ” of the Con- 
stitution of the United States or of Georgia, when read to 
him. In Louisiana he must be able to read and write and 
must make his application for registration in his own 
handwriting. Mississippi requires that the applicant must 
be able to read or understand or reasonably interpret any 

302 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


part of the Constitution of the State. North Carolina 
requires ability to read and write: the State Constitution 
in English; South Carolina requires also an ability to read 
and write the Constitution, but does not specify that the 
test must be in English. Virginia does not declare that 
the applicant must be able to read and write, but requires 
him to make his application for registration in his own 
handwriting, and prepare and deposit his ballot without 
aid. This does not apply to those registering under the 
“Grandfather Clause” to be considered later. 

All States © and Territories, except Georgia, Missouri, 
New Jersey, North Carolina, South Carolina, and New 
Mexico have adopted a blanket official ballot which is, in 
effect, the requirement of an educational qualification for 
voting. By this system the State provides a uniform bal- 
lot containing the names of all persons of all parties to 
be voted for, and requires the voter to mark and deposit 
his own ballot. Where no party emblem—as the elephant, 
cock, or anvil—heads the list of candidates of a particular 
party, it is wellnigh impossible for one to mark his ballot 
properly unless he is able both to read and write. 

The Southern States are more lenient in their educa- 
tional tests than other States in allowing a person other- 
wise qualified to vote if he has either education or prop- 
erty; while in the latter he must have a certain amount 
of education no matter how much property he owns. 

Educational qualifications easily permit race distinc- 
tions in several ways. In the first place, registration offi- 
cers may give a difficult passage of the Constitution to a 
Negro, and a very easy passage to a white person, or vice 
versa. He may permit halting reading by one and re- 

303 


SUFFRAGE 


quire fluent reading by the other. He may let illegible 
scratching on paper suffice for the signature of one and 
require of the other a legible handwriting. But race dis- 
criminations in such cases rest with the officers; they do 
not have their basis in the law itself. 

The educational clause of the proposed Maryland suf- 
frage amendment, recently defeated at the polls by the 
voters of that State, restricted the right to vote to a “ per- 
son who, in the presence of the officers of registration, 
shall, in his own handwriting, with pen and ink, without 
any aid, suggestion, or memorandum whatever addressed 
to him by any of the officers of registration, make applica- 
tion to register correctly, stating in such application his 
name, age, date, and place of birth; residence and occupa- 
tion at the time and for the two years next preceding; 
the name or names of his employer or employers, if any, 
at the time and for the two years next preceding; and 
whether he has previously voted, and, if so, the State, 
county, city, and district, or precinct in which he voted 
last. Also the name in full of the President of the United 
States, of one of the Justices of the Supreme Court of the 
United States, of the Governor of Maryland, of one of the 
Judges of the Court of Appeals of Maryland, and of the 
Mayor of Baltimore City, if the applicant resides in Balti- 


more City, or of one of the County Commissioners of the — 


County in which the applicant resides.” It is easy to see 
how race discriminations could have been made under this 
proposed amendment, but it need not be discussed inas- 
much as it failed to become law. 


304 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


“ Grandfather Clauses” 


The “ Grandfather Clauses” are, in a real sense, pe- 
culiar to the Southern States, though there are a few 
somewhat similar provisions in other States. For instance, 
Illinois, by its Constitution of 1870, allowed those to vote 
who had the right to vote on April 1, 1848, provided, of 
course, they satisfied the age, sex, and residence qualifica- 
tions. When Maine added its educational requirement in 
1893, it provided that this qualification should not apply 
to anyone who had the right to vote in January, 1893, or 
to anyone sixty years of age at that time. Massachusetts 
had made a similar provision in 1857. The Constitution 
of Wyoming of 1889 had said that nothing in it, except 
the provisions about idiots, lunatics, and convicts, should 
be construed to deprive any one of the right to vote who 
had that right at the time of the adoption of the Consti- 
tution. New Hampshire does not allow paupers to vote, 
but it provides that one who served in the Rebellion and 
was honorably discharged shall not be disfranchised be- 
cause he has received aid from the public. In the Phil- 
ippines, one unable to satisfy the educational or property 
test, may, nevertheless, vote if he held a substantial office 
under the Spanish régime. 

The principle of the “ Grandfather Clause,” in short, 
is that one who is not able to satisfy either the educational 
or property tests may, nevertheless, continue to be a voter 
for life if he was a voter in 1867 or is an old soldier or 
the lineal descendant of such voter or soldier, provided he 
registers prior to a fixed date. Alabama permits all who 
served honorably in:the forces of the United States in the 

21 305 


SUFFRAGE 


War of 1812, the War with Mexico, any war with Indi- 
ans, the War between the States, the War with Spain, or in 
the forces of the Confederate States or of the State during 
the War between the States and the lawful descendants 
of those and all who are of good character and who under- 
stand the duties and obligations of citizens under a repub- 
lican form of government, to register before December 20, 
1902. The clause in the Georgia Constitution is like that 
of Alabama, except that the privilege is extended to vet- 
erans of the Revolutionary War and their descendants, 
and the character and understanding clause is permanent. 
To take advantage of the “ Grandfather Clause” in 
Georgia one must register before January 1, 1915. Louisi- 
ana provided that one entitled to vote in any State Janu- 
ary 1, 1867, son or grandson of such a one twenty-one 
years old or over in 1898, or a foreigner naturalized he- 
fore January 1, 1898, who had resided in the State 
five years preceding his application for registration, might 
register before September 1, 1898. North Carolina allowed 
one who had the right to vote on January 1, 1867, and the 
lineal descendant of such a one to be registered prior to 
December 1, 1908. Before January 1, 1898, one could — 
register in South Carolina who could read the Constitu- 
tion of the State or understand and explain it. In Vir- 
ginia one might register up to 1904 who, before 1902, 
served in the army or navy of the United States or of the 
Confederate States or of Virginia or who was the son of 
such a one, or who owned property on which the State tax — 
was one dollar, or who was able to read and explain or to 
understand and explain the Constitution of the State. 
Mississippi has no “ Grandfather Clause.” 
306 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


In Alabama, Georgia, and Virginia, the fact that one 
was a soldier enabled him to register under the “ Grand- 
father Clause”; in Louisiana and North Carolina, that 
he was a voter in 1867. In each State the lineal descend- 
ants of such soldiers or voters in 1867 might register un- 
der the “ Grandfather Clause.” In Alabama one might 
register, though he was not an old soldier or descendant 
of one, if he understood the duties and obligations of citi- 
zenship and was of good character. In Virginia and 
South Carolina, one could register under the “ Grand- 
father Clause” if he could understand and explain the 
Constitution when read to him; and, in Virginia, if he 
owned property taxed as much as one dollar a year. 

The “ Grandfather Clauses ” are all temporary. Those 
classes of men covered by the clauses are given a certain 
time within which to have their names entered on a per- 
manent registry. If they are once entered on the perma- 
nent register, they are voters for life unless excluded be- 
cause of some crime or because they become public charges. 
If they fail, however, to register within the limited time, 
and still wish to become electors, they must satisfy the 
same tests as other applicants for registration. For in- 
stance, one who could vote in North Carolina in 1867 
might have his name entered on the permanent register 
prior to December 1, 1908, and thereby become a voter 
for life, though he had neither property nor literacy; if 
he failed to register by that date, he had to satisfy the 
educational test as any other applicant would have to do. 
The length of duration of the “ Grandfather Clauses ” 
- varies from a few months to several years. Thus, the 
“Grandfather Clause” of South Carolina was of avail 

307 


SUFFRAGE 


from 1895 to 1898; of Louisiana, from May 16, 1898, to 
September 1, 1898; of North Carolina, from July 1, 1900, 
to December 1, 1908; of Alabama, from 1901 to 1903; 
Virginia, from 1902 to 1904; and in Georgia, it extends 
from 1908 to 1915. It will be seen that Georgia is the 
only State in which the “ Grandfather Clause” is still in 
_ force. All who registered within the dates given above 
are still electors and will continue to be as long as they 
live unless excluded from the suffrage because of crime 
or the like; those who have not registered under the 
“Grandfather Clauses” cannot do so now, except in 
Georgia. 

The “ Grandfather Clauses ” are more nearly race dis- 
tinctions than any other sections of the suffrage laws for 
the reason that so many white men in the Southern States 
and so few Negroes are either old soldiers or descendants 
of old soldiers or had the right to vote in 1867. Yet they 
are not, technically speaking, race distinctions because, if 
one was a veteran or son of one, he might register regard- 
less of his race or color. As a matter of fact, a consid- 
erable number of Negroes in the Southern States, who 
were Federal soldiers in the Civil War, have registered 
under the “‘ Grandfather Clauses.” 


“ Understanding and Character Clauses” 


The “ Understanding Clauses” do not have as large 

a place in the suffrage laws of the Southern States as is 

commonly believed. In only two States—Georgia and 

Mississippi—is the “ Understanding Clause” permanent. 

In Georgia, one may register if he is of good character and - a 

understands the duties and obligations of citizens under 
308 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


a republican form of government, although he has neither 
education nor property. In Mississippi, one who cannot 
read may register if he can understand and reasonably in- 
terpret the Constitution when read to him. A distine- 
tion must be made between these two “ Understanding 
Clauses.” In Georgia the requirement is the understand- 
ing of the duties of citizens of a republican form of gov- 
ernment; in Mississippi it is understanding the State Con- 
stitution when read. In three other States—Alabama, South 
Carolina, and Virginia—the “ Understanding Clause” of 
the Mississippi type is part of the “‘ Grandfather ” section, 
and became inoperative with the “ Grandfather Clauses.” 
The Georgia provision which allows one to register, re- 
gardless of education or property, if he is of good moral 
character has a prototype in the Constitutions of Con- 
necticut which requires all electors to be of good moral 
character, and the Constitution of Vermont which re- 
quires the electors to be of quiet and peaceable behavior. 

It cannot be doubted that the permanent “ Under- 
standing Clauses” of Mississippi and Georgia lend them- 
selves to race discrimination. The Constitution of Mis- 
sissippi provides that the applicant for registration must 
be able either to read or understand and reasonably in- 
terpret the Constitution. ‘The registrar who so desires 
may easily disqualify members of one race by asking them 
to explain more difficult passages of the Constitution or 
by requiring of them a more scholarly interpretation of 
such passages than he demands of members of the other 
race whom he desires to have qualify as electors. In 
_ Georgia the registrar who passes upon an applicant’s un- 
derstanding of the duties and obligations of citizens under 

309 


SUFFRAGE 


a republican form of government may set a higher stand- 
ard for one race than for the other. 


Persons Excluded from Suffrage 


Certain classes of persons are excluded from the fran- 
chise because they are considered incapable or unfit to take 
a hand in governmental matters. The classes excluded 
are practically the same in all the States, and there is 
slight evidence of any race distinction in such cases. The 
following States do not allow paupers to vote: Delaware, 
Maine, Massachusetts, New Hampshire, New Jersey, 
Rhode Island, South Carolina, Texas, Virginia, and West 
Virginia. Other States, including Louisiana, Missouri, 
Montana, Oklahoma, and South Carolina, exclude the in- 
mates of public institutions of charity, Louisiana and Ok- 
lahoma making an exception of Soldiers’ Homes. Prac- 
tically all the States exclude idiots and insane persons 
from the suffrage. Other classes, though not excluded 
from the suffrage, are not allowed to get the required 
residence to become electors. Thus, in a number of States, 
students in schools, unless self-supporting, do not get the 
required residence by living at the school. In a great 
majority of the States, soldiers and sailors in service do not 
gain an electoral residence in a State, county, or precinct 
by being stationed therein. California, Idaho, Nevada, 
and Oregon exclude all but American-born Chinese. 
Where the Chinese, because of the Federal naturalization 
laws, are incapable of becoming citizens, they cannot be 
electors, because all the States require the electors to be 


either citizens or persons who have formally declared | 3 


their intention to become citizens. Idaho, Maine, Michi- 
310 


SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890 


gan, Minnesota, Mississippi, North Dakota, Oklahoma, 
Washington, and Wisconsin exclude tribal Indians, or, 
what is perhaps the same, Indians not taxed. 

All States exclude from the suffrage those who have 
been convicted of certain crimes; that is, those who may 
have served out their terms of imprisonment, but who 
have not been restored to their civil rights by the execu- 
tive department of the State. Treason and felonies like 
embezzlement and bribery are the crimes most frequently 
mentioned. One finds here a possible race distinction. 
The Southern States have greatly added to the list of 
crimes which operate as an exclusion from the suffrage. 
By the Constitution of Alabama of 1875, for instance, the 
following were excluded from suffrage: Those convicted 
of treason, embezzlement of public funds, malfeasance in 
office, larceny, bribery, or ony other crime punishable by 
imprisonment in the penitentiary. The last Constitution 
of Alabama is more specific; it mentions the following 
crimes as having the effect of excluding from the suffrage 
those convicted of them: Treason, murder, arson, embez- 
zlement, malfeasance in office, larceny, receiving stolen 
property, obtaining property or money under false pre- 
tenses, perjury, subornation of perjury, robbery, assault 
with intent to rob, burglary, forgery, bribery, assault and 
battery on wife, bigamy, living in adultery, sodomy, in- 
cest, rape, miscegenation, crime against nature, or any 
crime punishable by imprisonment in the penitentiary, 
or of any infamous crime or crimes involving moral turpi- 
tude; also any person who shall be convicted as a vagrant 
or tramp, or of selling or offering to sell his vote or the 
vote of another, or of making or offering to make false 

311 


SUFFRAGE 


return in any election by the people or in any primary 
election to procure the nomination or election of any 
person to any office, or of suborning any witness or regis- 
trar to secure the registration of any person as an elector. 
Delaware and several other States, on the other hand, 
exclude only those who have been convicted of a felony. 
If, as the Supreme Court of Mississippi said, the Negro 
is more given to furtive offences than to the robust crimes 
of the whites, the exclusions of the Alabama law would 
seem to be directed toward these offences. If more Ne- 
groes than whites are guilty of such crimes as larceny and 
wife-beating, and of sexual irregularities, then the law 
operates to disqualify for the suffrage more Negroes than 
whites. 


SUFFRAGE IN INSULAR POSSESSIONS OF UNITED STATES 


The suffrage qualifications in the insular possessions 
of the United States are particularly significant in that 
they tend to show the present attitude of Congress toward 
the elective franchise. The Act of April 30, 1900, provid- 
ing a government for the Territory of Hawaii, restricts 
suffrage to those who can speak, read, and write the Eng- 
lish or Hawaiian language—a strict educational test. In 
the Philippines to be an elector one must be a native of 
the Philippines, twenty-three years of age or over, and 
must have paid an annual tax of fifteen dollars, or be the 
owner of property assessed at two hundred and fifty dol- 
lars, or be able to speak, read, and write English or Span- 
ish, or have held substantial office under the Spanish 


régime. It will be noticed that the tax payment, educa- 


tional, property, and office-holding tests are alternatives, 
312 


CONSTITUTIONALITY OF SUFFRAGE AMENDMENTS 


so the satisfaction of any one of the four is sufficient. 
Manhood suffrage, as provided by the “ Foraker Act” % 
of 1900, is still in force in Porto Rico. But this seems 
destined soon to give way to a restricted suffrage. Secre- 
tary of War Dickinson has recently issued a report on the 
conditions in Porto Rico in which he suggests an amend- 
ment of the suffrage laws to the effect that, after the gen- 
eral election of 1910, the qualified voters for any election 
shall consist only of citizens of the United States, who, 
with such other qualifications as are required by the laws 
of Porto Rico, “are able to read and write; or on the 
day of registration shall own taxable real estate in their 
own right and name; or who are on said day bona fide 
members of a firm or corporation which shall own taxable 
real estate in the name of such firm or corporation; or 
on the day of registration shall possess and produce to 
the Board of Registration tax receipts showing the pay- 
ment of any kind of taxes for the last six months of the 
year in which the election is held.” President Taft, in 
transmitting the report to Congress, indorsed Secretary 
Dickinson’s suggestions, saying ®*: “ It is much better in 
the interests of the people of the island that the suffrage 
should be limited by an educational and property qualifi- 
cation.” The above suffrage qualifications for the insular 
possessions of the United States is evidence that the atti- 
tude of Congress toward universal suffrage has been con- 
siderably modified within recent years. 


CONSTITUTIONALITY OF SUFFRAGE AMENDMENTS 


The first “Suffrage Amendment” of the Southern 
States, that of Mississippi, was adopted twenty years ago, 
313 


SUFFRAGE 


and yet no case involving the constitutionality of these 
laws has been squarely presented to the Supreme Court 
of the United States. The one most nearly in point was 
Williams v. Mississippi ** in 1898. Williams, a Negro, 
had been indicted by a jury composed wholly of white men. 
The law required that a juror should be an elector. Wil- 
hams contended that the provisions of the Constitution 
about suffrage were a scheme to discriminate against Ne- 
groes, that the discrimination was effected, not by the 
wording of the law, but by the powers vested in the admin- 
trative officers. The United States Supreme Court re- 
fused to interfere, saying that the laws did not, on their 
face, discriminate against the races, and that it “had not 
been shown that their actual administration was evil, only 
that evil was possible under them.” 

Several suits® have been brought, the purpose of 
which has been to test the constitutionality of these laws, 
but they have all been decided on points of procedure or 
on technieal grounds. 

At present, the suffrage laws of the Southern States 
stand judicially unimpugned in the light of the Fifteenth 
Amendment. Mr. John Mabry Mathews ** says that 
the Supreme Court has shown an “apparent desire to 
shift the duty of redressing such wrongs [those arising 
under the suffrage laws| upon the political department of 
the Government. So far as Congress has given any indi- 
cation of its attitude upon the subject, it has intimated 
that the matter is one for judicial settlement. But the 
absence. of congressional legislation would in any case 
hamper the efficiency of the courts in securing the prac- 
tical enforcement of the Amendment. The real reason 

314 


ok 


CONSTITUTIONALITY OF SUFFRAGE AMENDMENTS 


behind the attitude of both Congress and the courts is the 
apathetic tone of public opinion, which is the final arbiter 
of the question. In the technical sense, the Amendment 
is still a part of the supreme law of the land. But as a 
phenomenon of the social consciousness, a rule of conduct, 
no matter how authoritatively promulgated by the nation, 
if not supported by the force of public opinion, is already 
in process of repeal.” 

It cannot be safely conjectured what the Supreme 
Court will say when it squarely faces the suffrage laws of 
the South in their relation to the Fifteenth Amendment. 
Until then, each is entitled to his opinion. That the citi- 
zenship, age, sex, and residence qualifications are in per- 
fect conformity to the Amendment there is no doubt. The 
qualifications of tax payment, property, and education 
existed long before the Fifteenth Amendment in the 
States of the men most active in securing the adoption of 
that Amendment. It is hardly to be supposed that the 
Senators and Representatives from Massachusetts and 
Pennsylvania understood the Amendment they were advo- 
cating to be nullifying the suffrage laws of their respective 
States. Moreover, a property or educational test is not an 
abridgment or denial of the right to vote, because it lies 
within the power of everyone, regardless of race, to accu- 
mulate property and acquire literacy. 

The “ Grandfather Clauses” are the most doubtful 
parts of the suffrage laws. In one sense, they are not at 
all a denial or an abridgment of the right to vote. Grant- 
ing that the property and educational tests are constitu- 
tional, the “ Grandfather Clause,” instead of abridging or 
denying, enlarges the right to vote by giving the suffrage 

315 


SUFFRAGE 


to those who would be disqualified under the property or 
educational tests. Be that as it may, the Southern States 
are more uneasy about the constitutionality of these provi- 
sions than of any others. For instance, at the last two 
sessions of the legislature of North Carolina bills were 
introduced to extend the “ Grandfather Clause” of that 
State to 1812 and 1816 respectively. In each ease the bill 
was defeated, the argument against it being that it was 
unwise to open up the suffrage question again, lest the 
amendment be brought into court.* 

A leading thinker on constitutional law has given the 
unpublished opinion that the “ Grandfather Clauses ” are 
in violation of the tenth section of the first article of the 
Constitution of the United States, which says that no State 
shall grant any title of nobility. His idea is that an order 
of nobility is created whenever a class of persons is 
granted exceptional political privileges, that the old sol- 
diers and lineal descendants constitute such a class, and 
that the title of nobility is “ Elector,’ whether expressed 
or not. 

If the “ Grandfather Clause” should be declared un- 
constitutional on the ground just suggested or on any 
other ground, the next question would be whether that 
would nullify the other sections of the suffrage laws, such 
as the educational and property tests. This depends upon 
whether the different sections of the laws are separable, 
whether the legislature or the people would have adopted 
the educational and property tests, etc., if they had thought 
the “‘ Grandfather Clause ” unenforceable.°* North Caro- 
lina prepared for just such a contingency by inserting the 
following section in its Suffrage Amendment: “ That this 

316 


; 
1 
‘ 


> a ee 


MARYLAND AND FIFTEENTH AMENDMENT 


amendment to the Constitution is presented and adopted 
as one indivisible plan for the regulation of the suffrage, 
with the intent and purpose to so connect the different 
parts, and to make them so dependent upon each other 
that the whole shall stand or fall together.” 


MARYLAND AND FIFTEENTH AMENDMENT 
| 


_In the preceding section it has been assumed that the 
Fifteenth Amendment is an integral part of the Constitu- 
tion of the United States. Whether or not this assumption 
is warranted is brought into question by a recent action of 
the legislature of Maryland. 

As has been said earlier in this chapter, Maryland has 
made two unsuccessful attempts to amend its suffrage laws 
in such a way as would disfranchise a large number of the 
present Negro voters in that State. The letter of the 
Constitution of Maryland at present restricts suffrage to 
white male citizens; but it has been taken for granted that 
the word “ white ” became inoperative under the Fifteenth 
Amendment. 

Out of the discussion of Negro suffrage in Maryland 
has arisen the question whether or not the Fifteenth 
Amendment itself is valid. At the last session of the 
legislature of that State, that of 1910, the so-called Digges 
Bills were introduced and passed by both houses. The 
purpose of these bills was to disfranchise all Negroes who 
have not owned five hundred dollars’ worth of property for 
two years before their application for registration, upon 
which all taxes have been paid during those two years. 
This disfranchisement applied only to State and municipal 

317 


SUFFRAGE 


elections. The bills failed to become laws only because 
they were vetoed by the Governor of the State. 

Upon the failure of the Digges Bills to be passed, a 
constitutional amendment °° was drafted and approved by 
the required three-fifths of all the members of both houses 
of the legislature, which embodied the same features as 
the Digges Bills. This amendment is to be voted upon by 
the people at the general election in November, 1911. 
This amendment provides for the Australian ballot and 
for uniform election laws throughout the State. In the 
event of the amendment being declared unconstitutional, 
the laws now in force in Maryland are to be revived 
automatically. 

The validity of the proposed Maryland amendment is 
directly dependent upon the invalidity of the Fifteenth 
Amendment. Under the proposed amendment, no prop- 
erty qualification whatever is required of white male citi- 
zens applying for registration, while a heavy property 
qualification is required of every other male citizen—and 
this must include Negroes—applying for registration. 
Thus, in violation of the Fifteenth Amendment, the right 
of citizens of the United States to vote would be denied or 
abridged by the State of Maryland on account of race or 
color. 

The validity of the Fifteenth Amendment is questioned 
on the following grounds, among others: (1) The fifth 
article of the Federal Constitution provides that Congress, 
“whenever two-thirds of both houses shall deem it neces- 
sary,” shall propose amendments to the Constitution. It 
is claimed that only thirty-nine of the sixty-six members 
of the Senate, less than two-thirds, voted to submit the 

318 


MARYLAND AND FIFTEENTH AMENDMENT 


Fifteenth Amendment to the States for their ratification. 
(2) Maryland was one of the two States—the other being 
Delaware—that refused to ratify either the Thirteenth, 
Fourteenth or Fifteenth Amendment. It is claimed, 
therefore, that Maryland is not bound by the Fifteenth 
Amendment, which it did not ratify. (3) The fifth 
article of the Constitution, after providing the two ways 
in which the Constitution may be amended, adds that “ no 
State, without its consent, shall be deprived of its equal 
suffrage in the Senate.” Upon this last clause, Mr. 
Arthur W. Machen, Jr., in a recent article in The Harvard 
Law Review,” has founded an ingenious argument that 
the Fifteenth Amendment is void. His reasoning on this 
point is, in brief, that the State meant here is the citizens 
or voters or the government of the State, and not the 
territory. By the enfranchisement of the Negroes after the 
War, the composition of the State was changed, a body of 
persons became part of the State who were not a part of 
it before, and thus the State was deprived of its equal 
suffrage in the Senate. Mr. Machen says: “ The Fifteenth 
Amendment amounts to a compulsory annexation to each 
State that refused to ratify it of a black San Domingo 
within its borders. It is no less objectionable than the 
annexation of the San Domingo in the Spanish main.” 
Whether or not any or all of the above objections and 
the others that are urged against the Fifteenth Amend- 
ment are valid cannot now be answered, because the valid- 
ity of the Amendment has been assumed by the courts 
rather than decided upon after argument. Until after the 
election of November, 1911, attention will be centered 
upon Maryland. If the proposed amendment to the State 
319 


SUFFRAGE 


Constitution is ratified by the people, then haste will no 
doubt be made to have its constitutionality tested, in which 
ease the validity of the Fifteenth Amendment will be 
directly raised. The Southern States, as a rule, deplore 
this action on the part of Maryland because they fear that 
it will open up the whole suffrage question. It is deplored 
by people over the country as a whole because they fear 
that it will revive the ill feeling among the sections oc- 
casioned by Reconstruction. 


EXTENT OF ACTUAL DISFRANCHISEMENT 


It is imposible to say how many persons have been 
disfranchised under the suffrage laws. No doubt many 
who are capable of satisfying the qualifications do not 
register, or, if they register, do not vote. This is probably 
due to the one-party system in the South. The following 
figures show either the extent of actual disfranchisement 
or the political apathy in the Southern States: In one 
county in Mississippi, with a population of about 8,000 
whites and 11,700 Negroes in 1900, there were only twen- 
ty-five or thirty qualified Negro voters in 1908, the rest 
being disqualified, it is said, on the educational test. In 
another county, with 30,000 Negroes, only about 175 were 
registered voters. In still another county of Mississippi, 
with 8,000 whites and 12,000 Negroes, only 400 white men 
and about 30 Negroes are qualified electors. The clerk of 
court of a county in North Carolina, with a population of 
5,700 whites and 6,700 Negroes, writes that a Negro has 
never voted in the County. As a general rule, taking the 
country at large, about one person in five is a male of vot- 
ing age. In Iowa four out of five possible voters have 

320 


EXTENT OF ACTUAL DISFRANCHISEMENT 


actually voted in the last four elections; in Georgia, a 
State of nearly the same population, the proportion is 
one to six. In Mississippi, in 1906, only one out of 
eighteen males of voting age actually voted; in Georgia, 
one out of fifteen. In a district in Mississippi with a 
population of 190,885, 2,091 votes were cast for the Rep- 
resentative, John Sharp Williams, in 1906; in a district 
in Connecticut with a population of 247,875, 46,425 votes 
were cast for Representative Litchfield. These figures 
show that the ratio of actual voters to total population in 
the Southern States is astoundingly smaller than in other 
States. 


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SUFFRAGE 


NOTES 


1 The following table, giving the dates of the Constitu- 
tions of the various States and the Organie Laws of the Ter- 
ritories with the sections referring to suffrage, up to and 
including 1865, indicates the extent to which suffrage was 
restricted to white people before and at that date. ‘ White,” 
“white freeman,” “free white,” etc., mean that only white 
persons or ‘white freemen or free white persons had the 
elective franchise. Where the suffrage is given to male 
“citizens ” or “inhabitants ” whether Negroes were included 
depends upon whether they were treated in those States as 
“citizens ” or “ inhabitants.” 


Alabama, Const., 1819, art. III, sec. 5.. White. 
os 1865, 045) VELL ye a 
Arkansas, . 1836, “ IV, ‘* 2..Free white. 
« 1864, Ts IV, ep ae dt ‘“ 
California, 4 1849, ‘ TT 2 White: 
Colorado, — Ter. Govt., 1861, ‘* 5..Free white. 
Connecticut, Const. 1B18 VE 2 White: 
Amend., 1845, ‘ VIII, aie 
Delaware, Const., 1792). TV," fT Freeswhite: 
(a3 1831, (as IV, é¢ 1 ; 66 66 
Florida, Ter. Govt., 1822, TE ae ey ‘ 
Const. 721838 "Bye Doe or Laeeats 3 
Ts 1865, 6 VI, 66 1 ‘“ ‘ 


Georgia, Z i ern evo B.C .. White. 


i 1789, “- IV, -“' 1..Citizens and in- 
habitants. 
“ 1798,“ IV, * .1..Citizens and in- 
habitants. 
sy 1865, * V, ‘“* 1..Free white. 
Illinois, . + 1818, “ II. **) 27... White; 
Sy 8 EE A er ge eee 
Indiana, i TS 16.) Rae Ay ances keane 
6s 1851, 6c II, 6“ 2 ¢6 


340 


NOTES 


Iowa, Ter. Govt., 1838, sec. 5..Free white. 
Const., 1846, art., II, “ 1..White. 
: LSoreue LEO ihn Dita trans 
Kansas, Ter. Govt., 1854, ‘<5. .Free white. 
Const., 1855, “ LE iil 2 W bite; 
i LSo( po VELL ee Po Citizens: 
sO 4) ARB eb eaae DT OPE uy Nila 
CAN ARE AV) ho 1 White: 


Kentucky, ss LiQ2 ra, .. Free citizens. 
‘c 1799, ‘s II, “ “ ‘“ 

ce 1850, (73 II, a3 

Louisiana, ih 1812, “ Ta 

Sees 1845, tit. II 

6c 1852, é Lh 66 


. Free white. 


(9 ce 


.. White. 


ro] 

Lar} 

co 

— ht 
= & CO © CO OO CO 


4 TSG 4 iy ALT 
Maine, rs 1820, art. II, sec. 1..Citizens. 
Maryland, : E70 ne Eis .. Free men. 
Amend., 1810, “ XIV, .. Free white. 


Conaty, uissi. ba ok Rape ra i 
4 1864, ‘“ Poets. 1." White: 
Massachusetts, af 1780, chap. I, art. 4..Freeholders. 


Amend., 1822, art. III, . .Citizens. 
Michigan, Const., 1835, ‘“ II, sec. 1..White. 
ss PSO ae Vids ete bok ies 
Minnesota, Ter. Govt., 1849, ‘* 5..¥Free white. 
MONEE. TL ESOT Hine Vv Ls .. White. 
Mississippi, Ter. Govt., 1808, oh ..Free white. 


1 
1 
CONSGR CLE ao uy REL bites OLY git! ‘ 
MOT RAD aattne TATOO TY: 
Missouri, Ter. Govt., 1812, Ene Laat a 
Const: 1820.4 TIE, 10) eo 
«1865, “ IL, “ 18..White. 


Nevada, — Ter. Govt., 1850, ‘“« §..Free white. 
‘“ 6 1861, pion Beas 8 6 
Const.) 186498" f IT; | 1. White: 
New Hampshire, ‘“ 1784, part II, . Inhabitants. 
se ACE Pgh he ree a 8 Rear Sie ee 
New Jersey, ite A7W7Gpart LY, oy x 
ie 1844, “ II, ‘' 1..White. 
New York, os EP Oc pe a LL; . Inhabitants. 


New York, Const., 1821, art. II, sec. 
6 1846, « II, 6 
North Carolina, # LETOR EVAL 
Amend., 1835, ‘ tha 
M 1854, 
Ohio, Const.) 131802 40" =) sd Viie 
‘“ 1851, a V, ‘“ 
Oregon, Ter. Govt., 1848, a 
Const., 1857, ‘ TEs 
Pennsylvania, i 1776,4.° Tie 
3H 1790) ec weak boy 
i IS38j0u ee Lye 
Rhode Island, 4 1842, ‘“ 1h Pio 
South Carolina, i 1776, res. XI, 
a V8 La 
a 1790, art. Lakes 
Amend., 1810, 
Tennessee, Const. eli 96, na iTS 
& 1834, | 66 IV, “ 
Texas, 1 1886 ee aV LL et 
WY 1845;. “ -. TIL, 
Vermont, if Wiiiichap. 
66 1786, cc end 
6 AOS soe ‘AG 
Virginia, mE 1830, art.. III, “* 
A L350. Ce LL ee 
# 1364 i Lo 
West Virginia, 1861-63," So ete, ot 
Wisconsin, Ter. Govt., 1836, 
Const., 1848, “ III, “ 


SUFFRAGE 


excepted). 
. Freemen. 


SHS Oe eS 


. .Citizens. 


ce 


..Freemen. 


‘6 (N ee 
groes excepted). 


.. Free white. 
. White. 


(73 
(as 


“« (Negroes 


cc 


. White freemen. 
. .Citizens. 
.. ‘As required by 


law.” 


.. Free white. 


ia ifs 


as (as 


..Freemen. 

.. Free white. 

. .Citizens. 
..Free (Negroes 


excepted). 


..Men of quiet 


and _ peace- 
able behavior. 


..Men of quiet 


and _—peace- 
ablebehavior. 


..Men of quiet 


and _—peace- 
ablebehavior. 


.. White. 
(73 


(a3 


(73 


.. Free white. 
.. White. 


NOTES 


2 Art. I, sec. 2. 

3 Art. VII, sec. 1. 

* Const., 1799, art. ITT. 

> Const., 1845, art. III. 

S Art: IT, sec: 1: 

7 Art. ITI, see. 1. 

8B. P. Poore: “ Charters and Constitutions,” II, p. 1353. 

® Amends. to Const. of 1776, art. I, sec. 3, par. 3. 

10 Congressional Record, vol. 38, part 8, app. pp. 297, 
et seq. 

11 Art. IV, sec. 1. 

12 Art. ITI, sec. 1. 

18 Gillespie v. Palmer, 1866, 20 Wis. 544; Laws of Wis. 
1849, p. 85. 

14 Albert Bushnell Hart: “Slavery and Abolition,” p. 83; 
“ The Realities of Negro Suffrage ” in the Proceedings of the 
American Political Science Association for 1906. 

15 Ala., 1867, art. VII, sec. 1; Ark, 1868, art. VIII, sec. 2; 
Fla., 1868, art. XV, sec. 1: Ga., 1868, art. IT, sec. 2; La, 
1868, tit. VI, art. 98; Miss., 1868, ‘art. VII, sec. 2; N. C, 
1868, art. VI, sec. 1; S. C. 1868, art. VIII, sec. 1; and Texas, 
1868, art. III, sec. 1. . 

1 Arti, LIT, see. 1. 

PRATT Tle sec. 2. 

18 B. P. Poore: “ Charters and Constitutions,” IT, p. 1353. 

19 Laws of Colo., 1861, pp. 71-72. 

20 Ibid., 1864, pp. 79-80. 

21 Pub. Acts of Conn., 1865, pp. 94-95. 

22 Laws of Minn., 1865, pp. 118-19. 

23 Laws of Wis., 1865, pp. 517-18. 

24 Congressional Record, vol. 35, part 2, pp. 1270 e# seq. 

25 Laws of Ja., 1868, pp. 290-91. 

26 Art. VIL. 


343 


Uw 


SUFFRAGE 


27 Laws of Dak. Ty., 1867-68, p. 255. 
28 Congressional Record, vol. 35, part 2, pp. 1270 et seq. 
29 Art. VII, sec. 1. 

30 Amend., 1870, art II, sec. 1. 

31 Art. III, sec. 1. 

82 Const., 1867, art. I, sec. 1. 

33 Neal v. Del., 1880, 103 U. S. 370. 

34 Laws of Ore., 1870, pp. 190-91. 

35 Laws of N. Y., 1870, I, p. 922. 

3616 Stat. L., 140-46, chap. 94. 

870. S. v. Reese, 1875, 92 U. S. 214. . 

88 TJ, S. v. Canter, 1870, Fed. Case No. 14,719. 

39 TJ. S. v. Crosby, 1871, Fed. Case No. 14,893. 

40 Anthony v. Halderman, 1871, 7 Kan. 50. 

41 Kellog v. Warmouth, 1872, Fed. Case No. 7,667. 

420. 8. v. Given, 1873, Fed. Case Nos. 15,210 and 15,211. 
48U. S. v. Cruikshank, 1874, Fed. Case No. 14,897; 92 
S. 542 (1875). 

44U.S. v. Petersburg (Va.) Judges of Election, 1874, Fed. 


Case No. 16,036. 


45 Bernier v. Russell, 1878, 89 Ill. 60. 

46 Hx parte Yarborough, 1884, 110 U. S. 651. 

47 Minor v. Happersett, 1874, 21 Wall. 162. 

48°09 US. 2140 (1875), 

49 Ratliff v. Beale, 1896, 20 S. 865. 

5° Const., 1890, art. XII, secs. 241 et seq. 

51 Const., 1895, art. II. 

52 Const., 1898, arts. 197, 198, and 202. 

53 Revised Stat., 1905, secs. 4815-17; Const., 1875, as 


amended 1900, art. VI. 


54 Const., 1902, secs. 177-82. 
55 Const., 1902, art. IT, secs. 18 et seq. 
56 Laws of Ga., 1908, pp. 27-31. 


344 


NOTES 


57 W. P. Pickett: “ The Negro Problem,” 1909, G. P. Put- 
nam’s Sons, p. 250; Laws of Md., 1908, pp. 301-04. 

58 Const. of U.S., art. I, sec. 8, par. 4. 

M2 tate dag OL 

60 Federal Stat., annotated, tis 5, pp. 207-08. 

61 Hedgman v. Bd. of Registration, 1872, 26 Mich. 51. 

62 The American Political Science Review, vol. 4, p. 63 
(Feb., 1910). 

6331 Stat. L., 82-83, chap. 191; Sixty-first Cong., 2d 
sess., H. Doc. No. 615; Congressional Record, vol. 45, p. 1199.: 
64 Williams v. Miss., 1898, 170 U. S. 213, at p. 225. 

65 Mills v. Green, 1895, 159 U. S. 651; Jones v. Mon- 
tague, 1904, 194 U. S. 147; Selden v. Montague, 1904, 194 
U. 8. 153; Giles v. Teasley, 1904, 186 Ala. 164, and 193 U. S. 
146; Giles v. Harris, 1903, 189 U. 8. 475. For discussions 
of the constitutionality of the suffrage laws of the South see 
The American Political Science Review, vol. I, pp. 17, et 
seq., and John Mabry Mathews: “ History of the Fifteenth 
Amendment,” 1909, The Johns Hopkins Press, pp. 97-127. 

66 Mathews: History of the Fifteenth Amendment, pp. 
125-26. 

67 Raleigh, N. C., News and Observer, Nov. 9, 1907; 
Feb. 24, 25, and 28, 1909. 

68 See Poindexter v. Greenhow, 1884, 114 U. S. 270, at 
p. 304; and Spraigue v. Thompson, 1885, 118 U. S. 90, at 
p. 95. 

69 Laws of Md., 1910, chap. 253. 

7° The Harvard Law Review, vol. XXIII, p. 169. 

71 W. P. Pickett: The Negro Problem, pp. 259-84. 

72 Kirby’s Digest, 1904, sec. 2767. 

73 Const., 1880, art. II, sec. 1, as amended 1894. 

74 Const., 1876, art. VII, sec. 1, as amended 1893; Revised 
Stat., 1908, sees. 2027 and 2146-50. 


345 


SUFFRAGE 


75 Const., 1818, art. VI, secs. 2 and 8, as amended 1897; 
General Stat., 1902, sees. 1593-94. 

78 Const., 1831, art. IV, sec. 1. 

77 Const., 1887, art. VI, sec. 1; General Stat., 1906, 
sec. 170. 

78 Const., 1889, art. VI, sec. 2. 

7® Const., 1870, art. VII, sec. 1. 

80 Const., 1851, art. II, secs. 84-85; Burns’s Stat., 1908, 
II, sec. 6877. 

81 Const., 1881, art. II. 

82 Const.,/ 1859, art. V. 

83 Const., 1891, sec. 145. 

84 Const., 1819, art. II, as amended 1898. 

85 Const., 1867, art. I, secs. 1-3. 

86 Const., 1780, as amended 1821 and 1857. 

87 Const., 1850, art. VII, secs. 1 and 8. 

88 Const., 1858, art. VII. 

89 Const., 1875, art. VIII, secs..2, 8, 10, and 11. 

°0 Const., 1889, art. IX. 

91 Const., 1866, art. VII. 

82 Const., 1864, art. IT. 

93 Public Stat., 1901, pp. 136-37. 

®4 Const., 1864, art. IT. 

% Const., 1894, art. II. 

96 Const., 1889, as amended, sec. 121. 

87 Const., 1851, art. V. 

98 Const., 1907, art. IIL. 

°9 Const., 1859, art. IT. 

100 Const., 1874, art. VIII. 

101 Const., 1842, as amended 1888, art. II. 

102 Const., 1889, art. VIL. 

103 Const., 1870, art. IV. 

104 Herron’s Sup. to Sayles’s Civil Stat., 1906, p. 165. 


346 


NOTES 


zoe Const. 1895, ‘art. LV. 

106 Statutes, 1906, p. 104. 

107 Const., 1889, art. VI. 

108 Const., 1872, art. IV, sec. 1. 

109 Const., 1848, art. ITI. 

110 Const., 1889, art. VI. 

111 Code, 1907, part V, sec. 199. 

112 Revised Stat., 1901, sec. 2282. 

113 Revised Laws, 1901, secs. 18, 60, and 63. 

114 Organic Act, 1850, sec. 6; Compiled Laws, 1897, secs. 
1647, 1672, and 1677-78. 

115 The Outlook, vol. 91, p. 78. 


CHAPTER XII 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS 


HERETOFORE, the writer has let the legislatures and 
courts speak for themselves, withholding personal opin- 
ions and refraining from making deductions from the — 
facts revealed. Now, however, that the various race dis- 
tinctions have been reviewed at some length, it may be 
worth while to consider what conclusions the facts warrant 
and what practical lessons they suggest. 


RACE DISTINCTIONS NOT CONFINED TO ONE SECTION 


Race distinctions are not confined to any one section 
of the country. This conclusion is the most patent of all. 
There is scarcely a State or Territory in the Union where 
legislative or judicial records do not reveal the actual ex- 
istence of at least some race distinctions. Of the twenty- 
six States and Territories that prohibit intermarriage, 
more than half, extending from Delaware to Oregon, are 
outside the South. Negroes have, on account of their 
race, been excluded, usually contrary to the local laws, 
from hotels in Massachusetts, Pennsylvania, Indiana, New 
York, Wisconsin, Michigan, Ohio, and Iowa; from barber- 
shops, in Nebraska and Connecticut; from boot-black 
stands, in New York; from billiard-rooms, in Massachu- 

348 


RACE DISTINCTIONS NOT CONFINED TO ONE SECTION 


setts; from saloons, in Minnesota and Ohio; from soda 
fountains, in Illinois; from theatres, in Illinois and New 
York; from skating rinks in New York and Iowa; and the 
bodies of Negroes have been refused burial with those of 
white persons in Pennsylvania. It is not meant here that 
Negroes are always excluded from such places in these 
States, but that instances of such exclusions are found in 
the laws. Most of the States have at one time or another 
made distinctions between the races in schools. California 
and other States of the Far West are demanding sep- 
arate schools for Japanese. Ohio, Indiana, Illinois, and 
Towa, besides other States of the Middle West, clash from 
time to time with their school boards for attempting to 
separate the races in schools. Delaware is diligent in pro- 
viding separate schools for white persons and Negroes. 
In Massachusetts, until 185%, the school board of Boston 
provided a separate school for Negroes in that city. As to 
public conveyances, the term “ Jim Crow,” applied to a car 
set apart for Negroes, was first used in Massachusetts, and 
it was in Pennsylvania that the first leading case involving 
the right of street car companies to separate their passen- 
gers by race arose. Instances of actual discrimination 
against Negroes by common carriers were found in [lli- 
nois, Iowa, and California. How common race distinc- 
tions are in the States mentioned the above resumé does 
not clearly show, because the great majority of grievances 
caused by race distinctions do not reach the court. But 
when one finds that the legislature has deemed it advisable 
to enact a law against race distinctions, it is reasonable 
to assume that they did in fact exist. For instance, five 
States, all outside the South, prohibit discriminations by 
349 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS 


insurance companies on account of race. Had these com- 
panies not evinced signs of discrimination against Ne- 
groes, such statutes would not have been enacted. It is 
well known that race distinctions are common in the 
South. 

Were this general prevalence of race distinctions fully 
realized, the result would be a kindlier feeling one to 
another among the white people of the various sections. 
They would then see that the presence or absence of race 
distinctions is due, not to any inherent difference in the 
character of the people, but to diverse conditions and en- 
vironment. When, therefore, the Negro children of Up- 
per Alton, Illinois, are seen to constitute an appreciable 
percentage of the school population, the people of that 
town, as the people of a Southern town would do under 
similar circumstances, demand for them a_ separate 
school. 


RACE DISTINCTIONS NOT CONFINED TO ONE RACE 


Race distinctions are not confined to any one race. 
It is true that most of the statutes and judicial decisions 
above referred to relate to the Negro because he belongs 
to a race which is the largest non-Caucasian element in 
the United States. Where, however, other race elements 
exist in considerable numbers, similar distinctions are 
sanctioned. One finds, for instance, in California and 
other States of the Far West, where Japanese are numer- 
ous, laws prohibiting intermarriage between Mongolians 
and Caucasians, and requiring separate schools for the 


two races. Similar laws have been enacted wherever there 


is an appreciable number of Indians. Wherever, in other | 
350 


RACE DISTINCTIONS NOT DECREASING 


words, any two races have lived together in this country 
in anything like equal numbers, race distinctions have 
been recognized in the law sooner or later; and, before 
becoming legally recognized, have existed in practice. 


RACE DISTINCTIONS NOT DECREASING 


Race distinctions do not appear to be decreasing. On 
the contrary, distinctions heretofore existing only in cus- 
tom tend to crystallize into law. As a matter of fact, 
most of the distinctions which are described above as the 
* Black Laws of 1865-68” are no longer in force. No 
State now carries statutes prescribing the hour when a 
Negro laborer must arise, requiring his contracts to be in 
writing, prohibiting him from leaving the plantation or 
receiving visitors without his employer’s consent, or ex- 
acting a license fee of him before he can engage in certain 
trades. These laws were vestiges of the slave system and 
survived but a short time after that system had been abol- 
ished. Likewise, those statutes which prohibited Negroes. 
from testifying in court against white persons were re- 
pealed during the first few years after Hmancipation. But 
distinctions which are not the direct results of slavery 
have found an increasing recognition in the law. Thus, 
though Florida, Mississippi, and Texas had separate rail- 
road coaches for freedmen in 1866, the regular “Jim 
Crow ” laws did not begin to creep into the statutes of the 
Southern States till 1881. Now every Southern State, 
except Missouri, has a law separating the races in rail- 
road cars. Mississippi, in 1888, was the first State to 
require separate waiting-rooms. Louisiana, in 1902, took 
the lead in compelling separate street car accommodations, 

351 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS 


being followed by most of the Southern States within the 
last seven years. 

A similar tendency toward crystallization of race dis- 
tinctions into law is found in schools. Though Massa- 
chusetts permitted separate schools as early as 1800, and 
though the Southern States required them from the be- 
ginning of their public school system, it is only recently 
that any States have seen fit to create distinctions in pri- 
vate schools by legislation. At present, Florida, Ken- 
tucky, Oklahoma, and Tennessee prohibit the teaching of 
white and Negro students in the same private schools, and 
their action in so doing the Supreme Court of the United 
States in the Berea College case has decided to be con- 


stitutional. Moreover, the Japanese school question of the 


West has become of national concern only within the last 
two years. | 

In the matter of suffrage also one observes the same 
general trend of practices slowly passing into statutes. 
Between 1877 and 1890 Negroes in the South were dis- 
franchised to a great extent in defiance of law. Begin- 
ning with Mississippi in 1890 and ending with Georgia in 
1908, seven Southern States have made constitutional pro- 
visions which, though not in letter creating race distinc- 
tions, lend themselves to race discriminations. 

That actual race distinctions still persist outside the 
South is shown by recent decisions. For instance, within 
a year, the Appellate Division of the Supreme Court of 
New York, in reducing damages awarded in the court 
below to a Negro porter for false imprisonment, held that 
by reason of his race, he did not suffer as much damage 
as would a white man under like circumstances. The 

3902 


——— oe ~~ e cat ~ ome 
IN ee ee ee ee ea ee 


ee a a ee ee 


> 


ee ee eee 


DISTINCTIONS NOT BASED ON RACE SUPERIORITY 


New York Times of November 19, 1909, refers to a 
recent decision of the Supreme Court of Iowa as holding 
that a coffee company licensed under the State laws, being 
a private concern, has the right to refuse to serve a Negro. 

Perhaps, as a whole, actual race distinctions in the 
United States are not increasing; but distinctions, formerly 
sanctioned only by custom, are now either permitted or 
required by law, and the number of recent suits in States 
outside the South indicates that actual discriminations are 
as prevalent as they have been at any time since 1865. 


DISTINCTIONS NOT BASED ON RACE SUPERIORITY 


What is the fundamental cause of race distinctions? 
No comparison of laws can formulate an answer to that 
question; but the personal observation of the writer leads 
to the belief that race distinctions are not based funda- 
mentally upon the feeling by one race of superiority to the 
other, but are rather the outgrowth of race consciousness. 
If Negroes were in every way equally advanced with white 
people, race distinctions would probably be even more 
pronounced than now; because, in addition to physical 
differentiation, there would be the rivalry of equally 
matched races. Thus, the widespread prejudice enter- 
tained by Gentiles toward Jews, resulting in actual, if 
not legal, distinctions, is due, not to any notion that Jews 
are intellectually or morally inferior to any people, but 
to a race consciousness which each possesses. The exclu- 
sion of the Japanese was due, not so much to an intel- 
lectual or moral inferiority of that race to the white race, 
as to a difference in their racial ideals. So long as two 
races living side by side have each an amour propre, the 

24 009 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS 


more numerous may be expected to prescribe distinctions 
to which the less numerous must submit; that is, until the 
spirit of universal brotherhood is a more compelling force 
than it is at present. 


SOLUTION OF RACE PROBLEM HINDERED BY MULTIPLICITY 
OF PROPOSED REMEDIES 


If the above generalizations are correct, they should 
enable one to draw some practical conclusions for dealing 
with race problems. The proper adjustment of race 
relations is being retarded by the multiplicity of suggested 
solutions, many of them conflicting and thus hindering 
one another, some of them parallel and necessarily dupli- 
cating expenditure of energy. For instance, some men, 
including both Negroes and white persons, believe that 
the proper solution of the race problem is the deportation 
of the Negro race; others, that it is the segregation of that 
race in some portion of the United States or colonization 
in some territorial possession; while others believe that 
the South should remain the permanent home of the ma- 
jority of Negroes. Advocates of territorial separation of 
one sort or another think that efforts should be directed 
toward getting the Negro to his new home as soon as pos- 
sible. Those who believe that the home of the Negro will 
remain in this country are divided upon the steps to be 
taken. Some of this class approve of further education | 
of the Negro, being divided, however, into two overlapping 
groups, the one emphasizing literary training, and the 
other industrial. Others of this class maintain that any 
sort of systematic education of the Negro is only hasten- 
ing an inevitable race conflict. In the midst of these con- 

354 


SEARCH FOR A COMMON PLATFORM 


flicting opinions, the Negro problem, instead of reach- 
ing a complete or even partial solution, is only being 
aggravated. 

There is no need of prophesying what the final solu- 
tion will be, but one is justified in believing that the in- 
evitable changes will be gradual. Whether or not the final 
adjustment is a segregation of the Negro race, one can 
hardly expect it to come in one, two, or even six decades. 
A century hence the white people will probably be living 
side by side with Negroes as they do now. The duty 
of the American people is to act properly toward all races 
in their own lifetime: the far future will take care of 
itself. The difficult thing to ascertain is the proper mode 
of acting to-day. The solution of the race problem, when 
it does come, will doubtless be a composite result. The 
race relations are not the same in different sections of 
the country or in different States of the South or even 
in different counties of the same State. Though the 
proper steps now to be taken in the various sections or 
States or counties may be different, there can, in the na- 
ture of things, be but one best mode of action for each 
community. That must be one for which all people, re- 
gardless of race or section, may profitably strive. 


SEARCH FOR A COMMON PLATFORM 


A noticeable effort has been made during the past few 
years by students of race relations to construct a platform 
upon which all men of every race may stand and work 
together for the permanent settlement of all racial antag- 
onisms. This is evidenced by the organization of late 
years of national movements which have enlisted the sup- 

355 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS 


port of men of different sections and races. One of these, 
the Southern Education Association, has been promoted 
by men from the North and East as well as by men from 
the South, by both Negroes and white people. Soon after 
the Atlanta riots of two years ago, a conference of South- 
ern white men and Negroes was held at Atlanta, for the 
purpose of promoting harmony between the races in the 
South. Within a few months a conference of Northern and 
Southern white men has met in Washington City to con- 
sider the Negro problem. Still more recently a group of 
Southern students in Harvard University, realizing that 
the race relations were different in different localities of 
the South, have organized an informal club to study the 
practical problems arising out of the presence of the 
Negro in the South and to exchange ideas formed from 
observation and experience in their respective localities. 
There are other indications of a desire to work out a com- 
mon set of principles by which everyone may be governed. 


PROPER PLACE OF RACE DISTINCTIONS 


Assuming that it is possible to formulate a platform 
deserving the approval of all races, it is appropriate for a 
student of any phase of race relations to suggest a plank 
for it. A student in the special field of race distinctions in 
American law may endeavor to show the place that such 
legal distinctions properly hold, bearing in mind all the 
while that the whole issue springs out of race conscious- 
ness as it actually exists to-day, not as it eaae be or as 
it may be in the distant future. 

Let one imagine the existence of a Federal statute— 
waiving the question of its constitutionality—prohibiting 

356 


eat 


ae 4 


‘ PROPER PLACE OF: RACE DISTINCTIONS 


States from legalizing race distinctions, so that all public 
places of amusement, accommodation, and instruction 
would be, so far as the law could make them, open to all 
persons, regardless of race. Such a measure, far from 
effecting its purpose, would doubtless be the beginning of 
extensive race discriminations. Once abolish, separate ho- 
tel accommodations and the white race, wherever it is in 
the majority, would monopolize every hotel, leaving other 
races either to walk the.streets or to find accommodations 
in private houses. Were separate street car accommoda- 
tions forbidden in cities where there is a fairly large per- 
centage of Negroes, if any passenger were forced to stand 
or be crowded off the car altogether, it would be the Negro. 
Were separate schools not permitted, Negro children might 
possibly be excluded from schools altogether in defiance 
of the law; but even if admitted, their interests, if dif- 
ferent from those of the more numerous race, would have 
to be sacrificed. A further review of race distinctions 
now legally recognized would only more fully substantiate 
the conclusion that, with race feeling as it is, if such dis- 
tinctions were not recognized and enforced, the stronger 
race would naturally appropriate the best for itself and 
leave the weaker race to fare as it could. 

On the other hand, let one imagine that the same laws 
recognizing race distinctions as now exist in the South 
obtained in all communities where two races are nearly 
equal in numbers. Suppose, for instance, that separate 
hotels were permitted in all cities which receive an appre- 
ciable number of Negro travelers. Respectable Negroes 
might then secure comfortable entertainment in hotels 
provided for their race and thus escape the inconvenience 

3 357 


Le 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS 


and humiliation of being denied admission to hotels main- 
tained exclusively for white persons. If separate schools 
were provided, Negro children would be free to pursue, 
unhampered by requirements prescribed for the more de- 
veloped race and unembittered by continuous manifesta- 
tions of race prejudice, a curriculum especially adapted 
to their own needs. Wherever separate railroad and street 
car accommodations were provided, a Negro might enter 
the car or compartment reserved for his race and go his 
way in peace, unmolested by the thoughtless or vicious of 
the other race. The result, therefore, of the honest en- 
forcement of race distinctions would be to the advantage 
of the weaker race. 


OBLITERATION OF RACE DISCRIMINATIONS 


The people of the different sections and races, instead 
of inquiring into the truth or falsity of such a conclusion, 
have been agitating the theoretical right and wrong of 
race distinctions. Meanwhile, indications are that legal- 
ized race distinctions have been unfairly enforced. For 
instance, statutes require that equal accommodations be 
given Negro passengers in public conveyances ; yet, while 
people have been debating the constitutionality and justi- 
fication of the “ Jim Crow ” laws, railroad companies have 
been compelling Negroes to occupy uncomfortable and un- 
sanitary coaches and waiting-rooms, and this though Ne- 
groes paid the same fare as white passengers. Further- 
more, ‘while they have been arguing the constitutionality 
of the suffrage laws of the South, white registrars have 
been putting unfair tests to Negro applicants for regis- 
tration, and by:so doing have made the laws a tool by 

358 


OBLITERATION OF RACE DISCRIMINATIONS 


which to work injustice to the Negro. While, finally, they 
have been strenuously discussing the school laws, Negro 
children have been suffering from, not only inadequate 
but, in many cases, improper training by ignorant Negro 
teachers. 

In suggesting the benefits that would accrue to the 
weaker race from legalized race distinctions, it is assumed 
that such distinctions would apply only in communities 
in which two races live side by side in something like 
equal numbers. The white people of the South should rec- 
ognize the inexpediency of requiring separate schools, sep- 
arate railroad and street cars, separate hotels, and separate 
accommodations in general for the colored races in most 
places outside the South where they constitute, in many 
instances, not more than one-tenth of the total popula- 
tion. The white people in the places,last mentioned 
should recognize that it would be equally unwise to crowd 
together white and colored races in schools, public convey- 
ances, hotels, theatres, and other public places in the 
South. Colored people everywhere should realize that a 
race distinction is not necessarily a badge of racial in- 
feriority, but may be simply a natural result of racial 
differentiation. Race distinctions may, therefore, have 
a very appropriate place in communities where, as has 
been said before, two races are about equal in numbers, 
at least where there are enough of the subordinate race to 
arouse in the dominant a feeling of race consciousness. 

Where, under the above view, race distinctions are jus- 
tifiable, and are enacted into law, the people of all races 
should unite in demanding that the laws be fairly applied. 
If, for instance, the presence of sufficient Negroes make 

359 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS 


it advisable to separate the races in public conveyances, 
the white people should unite with them in demanding 
that they be given equal accommodations. The Negro 
who has paid a first-class fare is entitled to coaches and 
waiting-rooms as sanitary, comfortable, and convenient as 
those provided for white persons paying the same fare. 
With separate schools provided, they should insist that 


each race be given an equal opportunity to get the sort of — 


training it most needs to do its work. This training may 
be different. 'The Southern Education Association? in 
session at Lexington, Kentucky, said: “On account of 
economic and psychological differences in the two races 
we believe there should be a difference in the courses of 
study and methods of. teaching, and that there should be 
such an adjustment of school curricula as shall meet the 
evident needs of Negro youth.” If it is true that the 
Negro child needs a different sort of training from the 
white, then it is a discrimination to give him the training 
peculiarly suited to the child of the other race. People 
may demand for the two races equal educational opportu- 
nities, and at the same time advocate different courses of 
study and methods of teaching. 

In States which have added new qualifications for suf- 
frage, both races may demand their impartial application. 
A Negro public spirited enough to pay his taxes, with edu- 
cation enough to read and write, or thrifty enough to 
accumulate the required amount of property should be 
allowed to register and vote as freely as a white man with 
similar qualifications. A white registrar who discrim- 
inates against a Negro applicant, by setting for him more 
difficult tests than are set for white applicants, is doing 

360 


‘ err 


ee ee ee 


OBLITERATION OF RACE DISCRIMINATIONS 


an injustice to the white people equally as great as that 
done to the Negroes. John B. Knox,? President of the 
Alabama Constitutional Convention of 1901, said at that 
time: “If we would have white supremacy, we must es- 
tablish it by law—not by force or fraud. If you teach 
your boy that it is right to buy a vote, it is an easy step 
for him to learn to use money to bribe or corrupt officials 
or trustees of any class. If you teach your boy that it is 
right to steal a vote, it is an easy step for him to believe © 
that it is right to steal whatever he may need or greatly 
desire.” Speaking from the standpoint of the Negro, Dr. 
Booker T. Washington ® said: “ As a rule, I believe in uni- 
versal, free suffrage, but I believe that in the South we 
are confronted with peculiar conditions that justify the 
protection of the ballot in many of the States, for a while 
at least, either by an educational test, a property test, or 
by both combined; but whatever tests are required, they 
should be made to apply with equal and exact justice io 
both races.” All people, white and black, should unite, 
not to secure the repeal of the suffrage laws, but to secure 
their enforcement with absolute impartiality. 

The welfare of both races—and this conclusion applies . 
equally to the other non-Caucasian races—requires the — 
recognition of race distinctions and the obliteration of race 
discriminations. The races should be separated wherever — 
race friction might result from their enforced association. 
The white race cannot attain its highest development when 
continually venting its spite upon the less fortunate race. 
Nor, indeed, can the Negro race reach its highest devel- 
opment when continually subjected to the oppressions of 
the more fortunate race. 

361 


RACE DISTINCTIONS VERSUS RACE DISCRIMINATIONS | i 


Such a recognition of race distinctions and such an a 
obliteration of race discriminations as are here advocated 
constitute principles by which all people, of every section 
and of every race, may stand and labor for the promotion 
of good feeling between all sections and harmony between 
all races. — | ; an 


NOTES 


1 Raleigh, N. C., N ews and Observer, Dee. 31, 1907. 
2 Proceedings of the Ala. Const. Conv., 1901, p. 12. 
3 Booker T. Washington: “Up from Slavery,” p. 237. 


TABLE OF CASES CITED! 


A 


Alsberg v. Lucerne Hotel Co. 
(53), 127. 

Anderson v. L. & N. Ry. Co. 
(44), 218. 

Anthony v. Halderman (40), 
293. 


B 


Barrett v. Jarvis (3), 27. 

Baylies v. Curry (73), 135. 

Beli v. State (33), 17. 

Berea College v. Com. (4), 157; 
(5); 158, 

Bernier v. Russell (45), 293. 

Binyon v. U. S. (48), 250. 

Board of Education of Rich- 
mond Co. v. Cummings (158), 
1938; (159), 193. 

Board of Education vy. Tinnon 
OVA VES & 

Booker v. Grand Rapids Med- 
ical College (147), 188. 

Bowlin v. Com. (4), 106; (15), 
243. 

Bowlin v. Lyon (76), 136. 

Bradwell v. State (5), 240. 

Bryan v. Adler (56), 128. 


Bullock v. N. J. (50), 250. 
Burks v. Basso (61), 130. 
Burns v. State (61), 97. 

Bush y. Com. of Ky. (48), 250. 
Butler v. Butler (29), 74. 


C 


C. & N. W. Ry. Co. v. Will- 
iams (16), 212. 

C. & O. Ry. Co. v. Com. of Ky. 
(42), 217; (50), 221. 

Carter v. Texas (47), 
(49), 250; (50), 250. 

Cavitt v. Texas (50), 250. 

Cecil v. Green (69), 133. 

Chase v. Stephenson (94), 179. 

Chiles v. C. & O. Ry. (47), 219. 

Civil Rights Cases (14), 110. 

Clark v. Board of Sch. Dirs. 
(106), 183. 

Claybrook v. Owensboro (176), 
197. 

Coger v. N. W. Union Packet 
Co.) (17%), 212. 

Coleman v. Vollmer (25), 73. 

Collins v. Texas (50), 250. 

Com. v. Sylvester (62), 131. 

Com. v. Williamson (131), 186. 


249; 


1The number in parentheses refers to the note; the other number, 


to the page. 


363 


TABLE OF CASES CITED 


Comer v. Comer (5), 69. 

Cooper v. Md. (50), 250. 

Cory v. Carter (102), 181. 

Crosby v. City of Mayfield 
(180), 198. 

Cumby v. Garland (25), 73. 


D 


Dallas v. Fosdick (119), 185. 

Dawson v. Lee (177), 197. 

Derry v. Lowry (13), 211. 

De Veaux v. Clemmons (57), 
128. 

Dick’s Charge to Grand Jury 
(12) 409, 

Dolan v. State (9), 242. 

Donnell vy. State (70), 134. 

Dove v. Ind. Sch. Dist. of Keo- 
kuk (107), 183. 

Down v. Allen (32), 74. 


E 
Eastling v. Ark. (50), 250. 


. Eden v. Legare (1), 27. 


Ellis v. Ala, (62), 274. 
Emmons’s Charge to Grand 
Jury (13), 109; (71), 134. 

Estill v. Rogers (12), 71. 


F 


Faulkner v. Salozzi (60), 129. 
Ferguson v. Gies (55), 128. 
Flood v. News and Courier Co. 
(7) 4) 283 

Francois, ex parte (44), 86. 
Frasher v. State (63), 97. 
Fugett v. Texas (50), 250. 
Furchey v. Eagleson (51), 125. 


G 


Giles v. Harris (65), 314. 
Giles v. Teasley (65), 314. 
Gillespie v. Palmer (13), 284. 
Green v. Ala. (50), 250. 
Green v. “‘ City of Bridgeton” 
(26). 2167 

Green v. State (62), 97. 
Griffin v. Brady (72), 276. 


H 


Haden v. Ivey (21), 73. 

Haggard v. Ky. (50), 250. 

Hall v. DeCuir (20), 213. 

Hedgman v. Bd. of Registra- 
tion (61), 297. 

Hicks v. Ky. (50), 250. 

Hopkins v. Bowers (32), 17. 

Houck v. 8. Pac. Ry. Co. (52), 
224. 

Hubbard v. Texas (50), 250. 

Humburd vy. Crawford (58), 
129. 


J 


Jones v. Montague (65), 314. 
Joseph v. Bidwell (72), 135. 


K 


Kaine v. Sch. Dirs. (133), 186. 
Kellar v. Koerber (64), 133. 
Kellogg v. Warmouth (41), 293. 
Kelly v. State (10), 242. 
Kinney, ex parte (57), 94. 
Kinney v. Com. (42), 84; (56), 
93. 
Kipper v. Texas (52), 251. 


364 


TABLE OF CASES CITED 


Knox v. Board of Education of 
, Independence (112), 183. 
Ky. v. Jackson (50), 250. 


L 


L. & N. Ry. Co. v. Catron (51), 
225. 

L. & N. Ry. Co. v. Com. of Ky. 
(55), 226. 

L. N. O. & T. Ry. Co. v. State 
(42), 217; (43), 218. 

La. v. Casey (50), 250. 

La. v. Joseph (50), 250. 

La. v. Murray (50), 250. 

Lane v. Baker (23), 167. 

' Leach v. Texas (53), 251. 

Lehew v. Brummell (155), 192. 

Lewis v. Henley (25), 167. 

Lewis v. Hitchcock (54), 127: 

Logwood v. M. & C. Ry. Co. 
(52), 224; (53), 224. 

Lonas v. State (63), 97. 

Lord vy. Ala. (62), 274. 


M 


McAlpine vy. State (45), 88. 
McDowell v. Bowles (4), 27. 
McDowell v. Sapp (30), 74. 
MeMillan v. School Com. (31), 
17s 
McPherson’s Case (21), 15. 
McPherson y. McCarrick (57), 
252. 
Marshall  v. 
196. 
Martin v. Board of Education 
of Morgan Co. (137), 186. 
Martin v. Texas (50), 250. 


Donovan (173), 


Medway v. Needham (59), 94. 
Messenger v. State (59), 129. 
Mills v. Green (65), 314. 
Minor v. Happersett (47), 294. 
Minor v. Jones (31), 74. 

Mo. v. Brown (50), 250. 
Monroe v. Collins (24), 16. 
Murphy v. W. & A. Ry. Co. 

(52), 224. 
Murray, ex parte (48), 250. 


N 


N. C. v. Daniels (50), 250. 

N. C. v. Peoples (50), 250. 

N. C. v. Sloan (50), 250. 

Neal v. Del. (48), 250. 

Norwood v. G. H. & S. A. Ry. 
Co. (54), 224. 


O 


O. Val. Ry. Ree. v. Lander 
(42), 217; (45), 218. 


Us 


Pace v. Ala. (62), 274. 

Pace and Cox v. State (61), 
273. 

Parker v. Texas (50), 250. 

People v. Board of Education 
of Quincy (95), 179, 

People v. Board of Education 
of Upper Alton (96), 179. 

People v. Dean (22), 15. 

People v. Easton (120), 185. 

People v. Gallagher (8), 29; 
(121), 185. 

People v. King (77), 136. 


365 


TABLE OF CASES CITED 


People v. Mayor, etc., of City 
of Alton (97), 180; (99), 
180. 

People v. School Board of Bor- 
ough of Queens (122), 185. 

People v. Washington (28), 
245. 

Pierce v. Union Dist. Sch. Trus- 
tees (117), 184. 

Pierre v. Fontennette (17), 72. 

Pleasant v. N. B. & M. Ry. Co. 
(15), 212. 

Plessy v. Ferguson (42), 217; 
(52), 224. 

Poindexter v. Greenhow (68), 
316. 

Pruitt v. Gaston Co. Commis- 
sioners (181), 198. 

Pullman-Palace Car Co. v. Cain 
(48), 220. 


R 


Ratliff v. Beale (49), 295. 

Reynolds v. Board of Education 
of Topeka (111), 183; (157), 
192. 

Rhone v. Loomis (63), 132. 

Riggles v. City of Durham 
(181), 198. 

Roberts v. The City of Boston 
(26), 167. 

Rogers v. Ala. (47), 249. 

Rowles v. Board of Education 
of Wichita (112), 183. 

Russ’s Application (50), 125. 

Ry. Co. v. Brown (18), 213. 


S 


S. C. v. Brownfield (50), 250. 
Scott v. Lairamore (14), 71. 


‘State 


Scott v. Sandford (3), 8. 
Scott v. State (8), 80. 

Selden v. Montague (65), 314. 
Slaughter-House Cases (10), 
107. 
Smith v. 
220. 
Smith v. Dirs. of the Ind. Sch. 

of the Dist. of Keokuk (107), 
183. 
Smith v. Ky. (50), 250. 
Smith v. Moody (7), 64. 
Smith v. State (46),219; (48), 
250. 
Smith v. Texas (50), 250; (54), 
251; (55), 251. 
So. Ry. Co. v. Thurman (10), 
ol; 
Spotarno v. Fourichon (5), 27. 
Spraigue v. Thompson (68), 
316. 
State ex rel. Tax Collector v. 
Falkenheimer (66), 133. 
State v. Bell (1), 78; (55), 
92. 
State v. Board of Education of 
Cincinnati (156), 192. 
State v. Board of Education of 
Oxford (128), 185. 
State v. City of Cincinnati 
(20), 166. 
State v. Duffy (115), 184. 
State y. Gibson (60), 96. 
State v. Grubbs (104), 182. 
v. Hairston (63), 97. 
State v. Kennedy (2), 78. 
State v. Lasater (28), 117. 
Vv 
Vv 
v 


Chamberlain (49), 


State v. Mitchell (105), 183. 
State v. Patterson (71), 233. 
State v. Ross (2), 78. 


366 


TABLE OF CASES CITED 


State v. Tutty (58), 94. 

Stewart, of color, v. Munchan- 
dler (13), 71. 

Stewart v. Southard (19), 166. 

Stikes v. Swanson (21), 73. 

Strauder v. W. Va. (47), 249. 


T 


Taylor, in re (4), 239. 

“The Sue” (27), 216. 

Thomas vy. Williams (75), 136. 

Thompson v. Texas (56), 251. 

Thurman vy. State (28), 16. 

Turner, in re (57), 5ST; (6), 
106. 


U 


Upton v. Times-Democrat Pub. 
Co. (6), 28. 

United States v. Canter (38), 
292. 

United States v. Crosby (39), 
292. 

United States v. Cruikshank 
(43), 293. 

United States v. Dodge (21), 
214; (52), 224. 

United States v. Given (42), 
293. 

United States v. 
(49), 124. 

United States v. Petersburg 
(Va.) Judges of Election 
(44), 293. 

United States v. Reese 
291; (48), 294. 

United States v. Rhodes (5), 
106; (6), 242. 


Newcomer 


(37), 


V 


Va., ex parte (47), 249. 

Va. v. Rives (47), 249. 

Van Camp v. Board of Educa- 
tion of Logan (22), 166. 


Ww 


Walden v. Vicksburg Ry. and 
Light Co. (70), 231. 

Walker v. Brockway (23), 16. 

Ward v. Flood (86), 177. 

Warren, ex parte (23), 244. 

Washington v. Washington 
(20) 5373. 

West Chester and Phila. Ry. 
Co. v. Mills (14), 212; (52), 
224, . 

Whitney v. Texas (51), 250. 

Whitney v. Texas (59), 252. 

Williams v. Board of Educa- 
tion of Fairfax Dist. (1387), 
186. 

Williams v. Board of Educa- 
tion of Parsons (111), 183. 

Williams v. Directors of Sch. 
Dist. No. 6 (16), 165. 

Williams y. Miss. (64), 314. 

Williams y. State (6), 69. 

Williams v. Texas (50), 250. 

Wilson v. Ga. (50), 250. 

Wolfe v. Ry. Co. (9), 31. 

Wood v. King (2), 27. 

Wysinger v. Crookshank (88), 
178: 


x 


Yarborough, ew parte (46), 293. 
Younger v. Judah (74), 136. 


367 


- 


ce is ; tit ie 


INDEX 


A 


Accommodations, equality of, 
in schools, 192-194; nature 
of, under “Jim Crow” laws, 
223-224. 

Adultery and fornication be- 
tween Negro and White, pun- 
ishment for, 273. 

“ African” as race name, 20. 

Africans, naturalization of, 
297. . 

“ Afro-American ” as race name, 
20. 

Age as a qualification for vot- 
ing, 297. 

Alabama, limitations in, upon 
Negroes in respect to occupa- 
tions, 41-42; sale of drugs 
by free Negroes prohibited 
in, 42; separation of paupers 
by race in, 47; apprentice 
laws in, 53; slave marriages 
legal in, by statute, 73; ef- 
fect of attempted intermar- 
riage in, 84; punishment in, 
for issuing license for inter- 
marriage, 86; for performing 
ceremony, 87; for cohabita- 
tion without intermarriage, 
88; separation of races in, 


25 


in prisons, 146; in asylums 
for deaf and blind, 148; in 
public schools, 170; division 
of public school fund between 
races in, 195; Negroes as 
witnesses in, 242; actual serv- 
ice by Negroes on juries in, 
253-264; qualifications for 
voting in, 322-323. 

Alaska, qualifications for vot- 
ing in, 338-339. 

Albany, N. Y., separation of 
races in schools of, 185. 

Aliens as voters, 296-297. 

Alton, Ill., separation of races 
in schools of, 180. 

Amalgamation, between race 
elements in United States, 
12; race line blurred by, 12. 
See Intermarriage, Miscege- 
nation. 

Amendments to Federal Consti- 
tution, purpose of first ten, 
102. See Constitutionality, 
Suffrage. 

Anderson, Charles W., on prop- 
er name for Negro, 23. , 

Apprentice laws applying to 
Negroes, 53-58; in Alabama, 
53; in Kentucky, 53; in 
North Carolina, 53; in Mis- 


369 


INDEX 


53-55; in South 
55-57; in Dela- 
constitutionality 


Sissippi, 
Carolina, 
Ware, uot 3 
of, 57; 

Arizona, selling liquor and fire- 
arms to Indians prohibited 
in, 45; effect given to mar- 
riages in other States by, 93; 
separation of races in schools 
of, 187; qualifications for 
voting in, 338-339. 

Arkansas, slave marriages le- 
gal in, by statute, 73; pun- 
ishment in, for performing 
ceremony of intermarriage, 
87; civil rights legislation 
in, 116; Negroes in militia 
in, 145; separation of races 
in prisons of, 146; in schools 
of, 170; Negroes as witness- 
es in, 242; early statute in, 
on Negro jury service, 249; 
actual service by Negroes on 
juries in, 254-255; qualifi- 
cations for voting in, 322- 
323. 
Arnett, Benjamin W., excluded 
from hotels in Boston, 126. 
Asheville, N. C., suits in, over 
mistakes in race designation 
in directory, 32. 

Asylums, separation of races 
in, 148. 

* Atlanta, Ga., separation of 

races in saloons of, 133. 


B 


Baker, Ray Stannard, “ Follow- 
ing the Colour Line,” 6; on 


intermarriage in North, 99; 
on race discrimination by la- 
bor unions, 140. 

Baptist denomination, race dis- 
tinctions in, 141. 

Barber shops, race distinctions 
in, 129-130. 

Berea College, separation of 
races in, 154-159. 

Billiard rooms, race distinc- 
tions in, 131-132. 

“ Black Laws,” of 1865-68, 35- 
63; of free States, 36-39; ex- 
cuse for Reconstruction ré- 
gime, 62-63. 

Black man, proper name for, in 
America, 20-24. 

“ Blacks” as race name, 21. 

Blind, in asylums, separated by 
race, 147. 

Boarding houses. 
rants. 

Bootblack stands, race distine- 
tions at, 130-131. 

Borough of Queens, N. Y., sepa- 
ration of races in schools of, 
185. 

Boston, intermarriage in, 98; 
race distinctions in hotels of, 
126; separation of races in 
public schools of, before 1857, 
167-170; separation of races 
on steamers plying between 
South and, 215-216. 

Bowen, J. W. E., on proper 
name for Negro, 20, 23. 

British Columbia, separation of 
races in schools of, 163. 

Brooks, Walter H., on proper 
name for Negro, 23. 


See Restau- 


370 


INDEX 


Brownsville, Texas, and Negro 
militia, 144. 

Bryce, James, on effect of Dred 
Scott decision, 8. 

Buffalo, N. Y., separation of 
races in schools of, 185. 


C 


Caboose cars not under “Jim 
Crow ” laws, 221. 

Cafés. See Restaurants. 

California, race distinctions at 
skating rinks in, 136; sepa- 
ration of races in schools 
of, 159-163; of Whites and 
Negroes in public schools 
of, 177-178; Mongolians and 
Indians as witnesses. in, 
245; qualifications for vot- 
ing in, 322-323. See Japa- 
nese. 

Canady, E. W., on Negro as 
lawyer, 241. 

Capitalization of “ Negro” as 
race name, 21-22, 24. 

Cemeteries, race distinctions in, 
136-137. 

Ceremony of intermarriage, 
punishment for performing, 
87-88. 

Certificates of slave marriages, 
70-73; in Kentucky, 70-72; 
in Louisiana, 72; in Mary- 
land, 72. 

Character as qualification for 
voting, 308-310. 

Cheshire, Joseph Blount, on 
separation of races in Epis- 
copal Church, 143-144. 


Chicken-stealing a felony, 275. 

Chinese, intermarriage of, with 
Whites, 82-83; separate 
schools for, in California, 
159; as witnesses in Califor- 
nia, 245. 

Chinese Exclusion Act, 296. 

Chop-houses. See Restaurants. 

Churches, race distinctions in, 
141-144, ; 

Citizenship as a qualification 
for voting, 296-297. 

Civil rights of Negroes, 102- 
149; Civil Rights Bill of 
1866, 9, 10, 104, 106; Civil 
Rights Bill of 1875, 10, 108- 
111, 247-248; Civil Rights 
Cases, 110-111; civil rights 
legislation, Federal, 103-111; 
in States, between 1865 and 
1883, 111-120; in Northern 
States, between 1865 and 
1883, 112-115; in South, 
after 1883, 120; in States 
outside South, after 1883, 
120-124; in Massachusetts, 
112; in Delaware, 112-114, 
118; in Kansas, 114; in Flor- 
ida, 115; in New York, 115; 
in Arkansas, 116; in Louisi- 
ana, 116; in Tennessee, 116- 
118; in North Carolina, 118- 
120; State Civil Rights Bills, 
table of, 122; penalty for 


violating, 123; construed, 
137-138. See Barber Shops, 
Billiard Rooms, Bootblack 


Stands, Cemeteries, Convey- 
ances, Hotels, Restaurants, 
Saloons, Schools, Skating 


371 


_ INDEX 


Rinks, Soda Fountains, and 
Theatres. 

Cohabitation of Negroes and 
Whites without intermar- 
riage, 88; constitutionality 
of laws against, 89. 

Colonies, race distinctions in, 7. 

Colorado, effect of intermar- 
riage in, 84; punishment in, 
for issuing license, 86; for 
performing ceremony, 87; 
race distinctions in churches 
prohibited in, 141; separa- 
tion of races in schools for- 
bidden in, 187; statute as to 
Negroes practicing law in, 
239; qualifications for voting 
in, 322-323. 

“Colored” required on street 
cars, 231. 

“Colored Persons” as 
name, 20. 

Conductors, of trains, punish- 
ment of, for violating “Jim 
Crow” laws, 225-226; on 
street cars, special policemen 
to enforce “ Jim Crow” laws, 
231. 

Connecticut, race distinctions 
in, in barber shops, 129; by 
insurance companies, 138- 
139; Negroes in militia in, 
145; qualifications for vot- 
ing in, 322-323. 

Constitutionality of apprentice 
laws, 57; of laws against co- 
habitation without intermar- 
riage, 89; of laws against in- 
termarriage, 95-97; of law 
separating races in Berea Col- 


race 


lege, 157-159; of California 
separate school law, 161; of 
laws separating races in pub- 
lic schools, 181; of exemp- 
tions in street car laws, 233; 
of Federal statute as to ju- 
rors, 249-250; of Southern 
Suffrage Amendments, 313- 
317. 

Contracts for labor by Negroes, 
46-53; in Florida, 46; in 
Virginia, 47; in Mississippi, 
47; in Kentucky, 47; in 
South Carolina, 48-53. 

Conveyances, public, separation 
of races in, 207-233. See 
“Jim Crow” laws. 

“Coon,” a term of contempt, 
20. 

Cotton, bagging off, at night, 
a crime, 275. 

Court room, Negro in, 237-277. 
See Judges, Jurors, Lawyers, 
Spectators, Witnesses. 

Courts, separate, for Negroes, 
272-273. 

Croatan Indians, intermarriage 
of, with Negroes prohibited, 
90; separate schools for, 174. 

Curfew law for Negroes in Mo- 
bile, Ala., 276. 


D 


Dakota Territory, selling liquor 
to Indians prohibited in, 45; 
“white” stricken from elec- 
tion laws of, 286. 

Dare, Virginia, and Lost Col- 
ony, 90-91. 


BUR 


INDEX 


“ Darkies ” as race name, 20. 

Defamation to call a white per- 
son a Negro, 26-33; action- 
able per se, 32. 

Delaware, “ Black Laws” of, 
37; apprentice laws of, 57; 
effect of intermarriage in, 
87; effect given to marriages 
in other States in, 92; civil 
rights legislation in, 112- 
114; provisions for public 
schools for Negroes in, 169; 
separation of races in public 
schools of, 178; “ Jim Crow ” 
legislation in, 211; intimida- 
tion of Negroes at polls in, 
293; qualif.cations for vot- 
ing in, 324-325. 

Dependents, State, separated by 
race, 146-149. See Asylums, 
Blind, Lunatic, Prisoners, 
Reformatories. 

Designation of race separation 
under “Jim Crow” laws, 
225. 

Detroit, Mich., race distinctions 
in restaurants of, 127. 

Dickinson, Secretary of War, 
on suffrage in Porto Rico, 
313. 

Discriminations, race, and dis- 
tinctions contrasted, 2-4, 
348-362. See Distinctions. 

Disfranchisement, extent of ac- 
tual, in South, 320-321. See 
Suffrage. 

Distinctions, race, defined, 1; 
contrasted with race discrim- 
inations, 2-4, 348-362; ac- 
tual and legal, contrasted, 5; 


in Colonies, 7; in hotels, 124— 
127; in restaurants, 127-129; 
in barber shops, 129-130; at 
bootblack stands, 130-131; 
in billiard rooms, 131-132; 
at soda fountains, 133-134; 
in saloons, 132-133; in thea- 
tres, 134-136; at skating 
rinks, 136; in cemeteries, 
136-137; by insurance com- 
panies, 138-140; in churches, 
141; in punishments, 273- 
277; in vagrancy laws, 275; 
not confined to one section, 
348-350; not confined to one 


race, 350-351; not decreas- 
ing, 351-353; not based 
on race superiority, 353- 


354; proper place of, 356— 
358. 

District of Columbia, inter- 
marriages in, 93; separate 
schools in, 189-190; suffrage 
in, 286. 

Division of publie school fund 
between races, 194-199. 


E 


East Orange, N. J., separate 
classes for white and Negro 
children in public schools of, 
184-185. 

East St. Louis, Ill, burning 
school building in, to prevent 
Negro school, 180. 

Eating houses. See Restau- 
rants, 

Education Association, South- 
ern, on race problem, 356; on 


373 


INDEX 


curricula for Negro schools, | 


360. 

Educational test as qualifica- 
tion for voting, 301-315. See 
Suffrage. 

Effect given by one State to 
marriages between Whites 
and Negroes in other States, 
92-95. 

Eggleston, J. D., Jr., on pro- 
portion of public school fund 
in Virginia contributed by 
Negroes, 195. 

Elements, race, in 
States, 6. 

Eliot, Charles W., on separa- 
tion of races in schools, 163- 
164. 

Emancipation Proclamation as 
military expedient, 8. 

Emmanuel Magazine on Ne- 
groes as lawyers, 240. 

Employees of railroad, “Jim 
Crow ” laws do not apply to, 
222-223. 


United 


“Enforcement Act” of 1870, 
290-291. 
Episcopal Church, separation 


of races in, 143-144. 
Equality of accommodations in 
public schools, 192-194; in 
public conveyances, 223-224. 
See Schools, Conveyances, 
“Jim Crow” laws. 
Evidence admitted as presump- 
tion of race, 17. 
Exemptions from application of 
“Jim Crow” laws, 222, 232. 
Extent of separation of races 
on railroad cars, 216; on 


street cars, 228-229; of ac- 
tual disfranchisement of Ne- 
groes, 320-321. See “Jim 
Crow” laws, Suffrage. 

Extra cars, “Jim Crow” laws 
do not apply to, 221. 


F 


Federal legislation on slave 
marriages, 75; on civil rights 
of Negroes, 103-111; on sepa- 
rate schools, 189-190. 

Fifteenth Amendment, ratified, 
10; and Negro suffrage, 281- 
282; and Oregon, 289; and 
Maryland, 317-320. See Suf- 
frage. | 

Firearms, sale of, to Negroes 
prohibited, 43-44; in Flori- 
da, 43; keeping of, by Ne- 
groes in Mississippi prohib- 
ited, 44; keeping of, by Ne- 
groes in South Carolina lim- 
ited, 44; selling of, to In- 
dians in Oregon prohibited, 
45; carrying of, limited to 
Whites in Oregon, 45; sell- 
ing of, to Indians prohibited 
in Arizona, 45. 

Flack, Horace E., on contem- 
porary understanding of 
Civil Rights Bill of 1866, 
106; on purpose of adoption 
of Fourteenth Amendment, 
107. 

Florida, sale of firearms to 
Negroes prohibited in, 43; 
contracts for labor by Ne- 
groes in, 46; remarriage of 


374 


INDEX 


Negroes in, 68; effect of in- 
termarriage in, 84; punish- 
ment in, for issuing license 
for intermarriage, 86; for 
performing ceremony, 87; for 
cohabitation without inter- 
marriage, 88; civil rights 
legislation in, 115; race dis- 
tinctions in cemeteries in, 
136; separation of races in 
schools of, 170; in private 
schools of, 190; early “Jim 
Crow ” laws in, 208; Negroes 
as witnesses in, 2438; actual 
jury service by Negroes in, 
255-256; different punish- 
ments for Negroes in, 274; 
qualifications for voting in, 
324-325. 

Foraker, Senator, on Browns- 
ville affair, 145. 

Fornication and adultery be- 
tween Negro and White, pun- 
ishment for, 273. See Pun- 
ishments. 

Fourteenth Amendment, rati- 
fied, 9; and intermarriage, 
97; superseding Civil Rights 
Bill of 1866, 106; interpret- 
ed by Slaughter-House cases, 
107-108; and Berea College 
affair, 157-158; and Negro 
jury service, 252; and Negro 
suffrage, 287. See Civil 
Rights, “Jim Crow ” laws. 

Free Negroes, marriage _ be- 
tween, and slaves, 74. See 
Negroes, Marriage, Move- 
ments, ‘ Black Laws,” Civil 
Rights. 


G 

Genealogical table in determin- 
ing race, 18. 

Georgia, remarriage of Negroes 
in, 69; social status not a 
subject of legislation in, 80; 
effect given by, to marriages 
in other States, 93; Negroes 
in militia in, 145; separation 
of prisoners by race in, 146; 
separation of races in reform- 
atories of, 147; in public 
schools of, 170; Negroes as 
witnesses in, 2438; actual 
service by Negroes on juries 
in, 256-258; qualifications 
for voting in, 324-325. 

Germantown, Pa., Guide on 
cemeteries for Negroes, 137. 

“Grandfather Clauses” as 
qualifications for voting, 
305-308. See Suffrage. 


H 


Harvard University, Dr. Chas. 
W. Eliot on separation of 
races at, 164; study of race 
problem at, 356. 

Hawaii, qualifications for vot- 
ing in, 338-339. 

High Schools, for Whites and 
not for Negroes, 193; no 
separation of race in, of In- 
diana, 182; of Kansas, 183. 
See Schools. 

Hotels, race 
124-127. 

Hurd, John Codman, “ The Law 


distinctions in, 


375 


INDEX 


of Freedom and Bondage in 


ico, 45; in Nebraska, 45; in 
the United States,” 8. i 


Dakota Territory, 45; in 
Idaho, 45; in Maine, 46; in 


[ Utah, 45; in Washington, 
45; intermarriage between 
Idaho, selling firearms to In- Whites and, 82; between 


dians prohibited in, 45; sepa- 
ration of races in public 
schools of, forbidden, 187; 
qualifications for voting in, 
324-325. 


Croatan Indians and Ne- 
groes, 90; separate schools 
for, allowed in California, 
159; as witnesses in Califor- 
nia, 245; in Virginia, 245; 


Identity, race, mistaken on 
cars, 29-32. 
Illinois, “‘ Black Laws ” of, 38; 


slave marriages in, legal by 


in Washington, 246. 
Indictments quashed because 
no Negroes on jury, 250- 
252. 


Indians, 


statute, 74; race distinctions 
in, at soda fountains, 133; 
in theatres, 135; at skating 
rinks, 136; separation of 
races in public schools of, 
178-179; qualifications for 
voting in, 324-325. 


Indiana, ‘‘ Black Laws ” in, 37; 


effect of intermarriage in, 
84; punishment in, for per- 
forming ceremony of inter- 
marriage, 87; race distinc- 
tions in hotels in, 125; sepa- 
ration of races in orphan 
asylums in, 148-149; in 
schools of, before 1865, 167; 
in public schools of, 181; 
Negroes as witnesses in, 245; 
qualifications for voting in, 
326-327. 

selling firearms to, 
prohibited, 45; in Arizona, 
45; in Idaho, 45; selling 
liquor to, prohibited, 45-46; 
in Arizona, 45; in New Mex- 


Insular possession of United 


States, suffrage in, 312-313. 


Insurance companies, race dis- 


tinctions by, 138-140. 


Intermarriage, and miscegena- 


376 


tion, 78-99; during Recon- 
struction, 78-80; between 
Whites and “Persons of 


Color,” 81; present state of 
the laws on, 81; to whom 
laws apply, 81-83; between 
Chinese and Whites, 82-83; 
between Indians and Whites, 
82-83; between Kanakans 
and Whites, 83; between 
Mongolians and Whites, 82- 
83; effect of attempted, 83- 
84; punishment for, 84-86; 
punishment for issuing li- 
cense for, 86-87; punishment 
for performing ceremony of, 
87-88; repeal of laws against, 
89-90; and Federal Consti- 
tution, 95-97; and Four- 
teenth Amendment, 97; in 


INDEX 


Boston, 98; at Xenia, O., 99; 
in North, 99. 


Interstate travel and “Jim 
Crow ” laws, 217-219. 
Intimidation of Negroes at 


polls, 291-294. 


Iowa, “ Black Laws” in, 38; 


race distinctions in boarding 
houses in, 128; at skating 
rinks in, 136; separation of 
races in public schools of, 
not allowed, 183; in steam- 
boats in, 212; statute as to 
Negroes practicing law in, 
239; “white” stricken from 
Constitution of, 286; qualifi- 
cations for voting in, 326- 
327. 


J 


Japanese, excluded from public 
schools 
159-163; census of, to be 
taken in California, 163. 
“Jim Crow” laws, origin of 
term, 208; legislation be- 
tween 1865 and 1881, 211- 
214; as applied to interstate 
travel, 217-219; means of 
separation of races, 224; des- 
ignation of separation of 
races, 225; punishment for 
violating laws, 225-226. See 
Conveyances. 

Johnson, E. A., on proper name 
for Negro, 22. 

Joyner, J. Y., on proportion of 
public school fund in North 
Carolina contributed by Ne- 
groes, 194. 


of San _ Francisco, 


Judges, Negroes as, 238. 
Jurors, Negroes as, 247-272; 


jury service and Civil Rights 
Bill of 1875, 247-248; State 
statutes on jury service, 248; 
actual jury service by Ne- 
groes in South, 253-271. 


K 


Kanakans, term defined, 25; in- 


termarriage between, and 


Whites, 83. 


Kansas, civil rights legislation, 


B77 


114; race distinctions in 
cemeteries, 136; separation 
of race in public schools of 
cities of first class, 183; in: 
timidation of Negroes at 
polls, 292; qualifications for 
voting, 326-327. 


Kentucky, movements of Ne- 


groes restricted in, 40; selling 
liquor to Negroes prohibited 
in, 44; contracts for labor 
by Negroes in, 47; appren- 
tice laws in, 53; certificates 
of slave marriages in, 70-72; 
separation of lunatics by 
race in, 148; separation of 
races in private schools of, 
154-155; in public schools 
of, 171; local taxation for 
schools of, 196-197; Negroes 
as witnesses in, 242-243; ac- 
tual service by Negroes on 
juries in, 258; different 
punishments for Negroes 
in, 274; punishment for 
chicken-stealing in, 275; 


INDEX 


qualifications for voting in, 
326-327. 

Kitchin, W. W., on Negro suf- 
frage in North Carolina in 
1835, 283. 

Knox, John B., on suffrage, 
361. 


L 


Labor, contracts for, by Ne- 
groes, 46-53; in Florida, 46; 
in Kentucky, 47; in Missis- 
sippi, 47; in Virginia, 47; 
in South Carolina, 48-53. 

Labor unions, race discrimina- 
tion by, 140-141. 

Lawyers, Negroes as, 239-241. 

Legitimacy of children of slave 
marriages, 67-75. See Mar- 
riages. 

License, punishment for issu- 
ing, for intermarriage, 86-87. 

Limitations upon Negroes in 
respect to occupations, 41-43. 

Lincoln, Neb., race distinctions 
in barber shops in, 129. 

Liquor, sale of, to free Negroes 
prohibited, 43-44; in Ken- 
tucky, 44; in Mississippi, 
44; sale of, to Indians pro- 
hibited, 45-46; in Arizona, 
45; in Dakota Territory, 45; 
in Idaho, 45; in Nebraska, 
45; in Utah, 45; in Wash- 
ington, 45; in Maine, 46. 

Lost Colony and Virginia Dare, 
90-91. 

Louisiana, certificates of slave 
marriages in, 72; punish- 
ment in, for cohabitation 


without intermarriage, 89; 
civil rights legislation in, 
116; separation of races in 
saloons in, 133; race distinc- 
tions in theatres in, 135; 
separation of races in schools 
of, during Reconstruction, 
171; at present, 172; race 
distinctions on public con- 
veyances in, 213; early stat- 
ute on Negro jury service in, 
249; actual service by Ne- 
groes on juries in, 258-259; 
intimidation of Negroes at 
polls in, 293; qualifications 
for voting in, 326-327. 
Lucas County, O., race distinc- 
tions in restaurants in, 128. 


Lunatics, separated by race, 
147. 

Lunch counters. See Restau- 
rants. 


Lynch, James, body of, removed 
from white to Negro ceme- 
tery, 137. 


M 


Machen, A. W., Jr., on Fif- 
_ teenth Amendment, 319. 

Maine, sale of liquor to Indians 
prohibited in, 46; repeal of 
law against intermarriage of 
Negroes and Whites in, 90; 
qualifications for voting in, 
328-329. 

Marital relations of 
fixed, 67-75. 

Marriages, slave, certificates of, 
70-73; in Kentucky, 70-72; 
in Louisiana, 72; in Mary- 


slaves 


378 


INDEX 


land, 72; legal by statute, 
73-74; in Alabama, 73; in 
Arkansas, 73; in Texas, 73; 
in Illinois, 74; in Ohio, 74; 
in Virginia, 74; in West Vir- 
ginia, 74; between slaves and 
free Negroes, 74; slave, and 
Federal legislation, 75;  be- 
tween Negroes and other non- 
Caucasian races, 90-91; be- 
tween Negroes and Croatan 
Indians in North Carolina, 
90; effect given by one State 
to, in other States, 92-95; 
marriage a status, 96. 
Maryland, ‘“ Black Laws” in, 
36; certificates of slave mar- 
riages in, 72; effect of inter- 
marriage in, 84; separation 
of races in public schools of, 
172-173; and Negro lawyers, 
239; Negroes as witnesses in, 
243; qualifications for vot- 
ing in, 328-329; and Fif- 
teenth Amendment, 317-320. 


Massachusetts, civil rights leg- - 


islation in, 112; race distinc- 


tions in hotels in, 125; in . 


barber shops in, 129; in bil- 
liard rooms in, 131; at skat- 
ing rinks in, 136; by insur- 
ance companies in, 138; reso- 
lution against discrimination 
by labor unions of, 140; sepa- 
ration of races in _ public 
schools of, before 1857, 167- 
170, 187; gave name to “ Jim 
Crow” car, 208; qualifi- 
cations for voting in, 328- 
329. . 


Mathews, John Mabry, on Fif- 
teenth Amendment, 314-315. 

Means of separation of races 
under “Jim Crow” laws, 
224; on street cars, 229- 
230. 

Metcalf, Secretary, on separa- 
tion of races in schools of 
San Francisco, 160. 

Methodist Church, race distinc- 
tions in, 141. 

Michigan, repeal of law against 
intermarriage in, 90; race 
distinctions by insurance 
companies in, 138, 139; sepa- 
ration of races in schools of, 
187-188; qualifications for 
voting in, 328-329. 

Militia and Negroes, 144-145. 

Milton, Senator, and intermar- 
riage in District of Colum- 
bia, 95. 

Milwaukee, Wis., race distinc- 
tions in restaurants in, 128. 

Minnesota, race distinctions in 
saloons in, 132; separation 
of races in schools of, fore 


bidden, 188; qualifications 
for voting in, 328-329. 
Miscegenation, not a _ bridge 


from one race to the other, 
19; and intermarriage, 78- 
99. See Intermarriage, Mar- 
riages. : 
Mississippi, limitations upon 
Negroes in respect to occu- 
pations in, 43; keeping fire- 
arms by Negroes without li- 
cense prohibited in, 44; sell- 
ing liquor to Negroes prohib- 


379 


INDEX 


ited in, 44; contracts for 
labor by Negroes in, 47; 
apprentice law in, 53-55; va- 
grancy law in, 59-60; pauper 
law in, 61-62; effect of in- 
termarriage in, 85; effect 
given to marriage in other 
States in, 93; race distinc- 
tions in theatres in, 134; in 
cemeteries in, 137; no dis- 
crimination against prison- 
ers on account of race in, 
146; separation of races in 
public schools of, 173; early 
“Jim Crow” law in, 208; 
Negroes as witnesses in, 243; 
early statute on Negro jury 
service in, 249; actual serv- 
ice by Negroes on juries in, 
259; qualifications for vot- 
ing in, 328-329. 

Missouri, ‘‘ Black Laws” in, 
37; remarriage of slaves in, 
69; effect of intermarriage 
in, 85; race distinctions in 
theatres in, 135; separation 
of races in schools of, 173; 
actual service by Negroes on 
juries in, 263-265; chicken- 
stealing a felony in, 275; 
qualifications for voting in, 
330-331. 

Mobile, Ala., curfew law for 
Negroes in, 276. 

Mongolians, intermarriage be- 
tween Whites and, 82-83; 
separate schools for, permit- 
ted in California, 159; as 
witnesses in California, 245. 
See Chinese, Japanese. 


Montana, qualifications for vot- 
ing in, 330-331. 

Movement of Negroes restrict- 
ed, 40-41; in Kentucky, 40; 
in South Carolina, 40-41. 

Mulattoes, difficulty in getting 
census enumeration of, 13; 
definition of, 16; separation 
of Negroes and, in churches, 
144. See Negroes. 


N 

Name, proper, for Negro, 20- 
24, 

Narrow-gauged roads, “Jim 
Crow” laws do not apply to, 
PA le 

Nashville, Tenn., separation of 
races in saloons in, 133. 

Nature of railroad accommo- 
dations under ‘“‘ Jim Crow” 


laws, 223-224. See “Jim 
Crow” laws. 
Naturalization of Africans, 


297. 

Nebraska, selling liquor to In- 
dians prohibited in, 45; qual- 
ifications for voting in, 330- 
331. 

“ Negress,” an offensive term, 
22. 

“ Negro-Americans” as 
name, 22. 

“ Negroes ” as race name, 20. 

Negroes, legal definition of, 12— 
20; defamation to call Whites 
Negroes, 26-33; movements 
of, restricted, 40-41; in Ken- 
tucky, 40; in South Caro- 
lina, 40-41; limitations upon, 


Trace 


380 


INDEX 


in respect to occupations, 
41-43; prohibited from hav- 
ing firearms, 43-44; in Mis- 


sissippi, 44; in South Caro- 


lina, limited, 44; selling 
liquor to, prohibited, 44; in 
Kentucky, 44; in Mississippi, 
44; contracts for labor by, 
46-53; apprentice laws ap- 
plying to, 53-58; marital re- 
lations of, fixed, 67-75; re- 
marriages of, after Emanci- 
pation, 68-70; in Florida, 
68; in Georgia, 69; in Mis- 
souri, 69; marital relations 
of, established in South Caro- 
lina, 70; marriages between 
other non-Caucasian races 
and, 90-91; civil rights of, 
102-149; influence of Civil 
Rights Bill of 1866 upon con- 
duct of, 105; in militia, 144—- 
145; in court room, 237-277; 
as judges, 238; as lawyers, 
239-241; as witnesses, 246; 
as jurors, 247-272; jury 
service of, and Fourteenth 
Amendment, 252; actual jury 
service of, in South, 253-271; 
separate courts for, 272-273; 
suffrage for, 281-289; and 
Fifteenth Amendment, 281- 
282; in New York, 283; in 
North Carolina before 1835, 
283; in Tennessee in 1834, 
284; before 1865, 282-285; 
between 1865 and 1870, 285- 
288; and Fourteenth Amend- 
ment, 287; between 1870 and 
1890, 288-294. 


Nevada, effect of intermarriage 
in, 85; punishment in, for 
performing ceremony, 87; for 
cohabitation without inter- 
marriage, 89; separation of 
races in public schools of, 
184; Negroes as witnesses in, 
246; qualifications for voting 
in, 330-331. 

New Hampshire, qualifications 
for voting in, 330-331. 

New Jersey, Negroes in militia 
of, 145; separation of races 
in public schools of, 184; 
qualifications for voting in, 
330-331. 

New Mexico, selling liquor to 
Indians prohibited in, 45; re- 
peal of law against intermar- 
riage in, 90; separation of 
races in public schools of, 
prohibited, 188; qualifica- 
tions for voting in, 338-339. 

New York, slave marriages val- 
id in, 74; civil rights legis- 
lation in, 115; race distinc- 
tions in restaurants in, 127; 
at bootblack stands in, 130; 
in cemeteries in, 136; at 
skating rinks in, 136; in 
theatres in, 136; by insur- 
ance companies in, 138-139; 
separation of races in asy- 
lums of, 148; in public schools 
of, forbidden, 185; Negro 
suffrage in, 283; qualifica- 
tions for voting in, 330-331. 

News and Courier, Charleston, 
S. C., sued for calling white 
man “colored,” 28. 


381 


INDEX 


“ Nigger,” a term of contempt, 
20. 


Non-Caucasian races, marriage 


between, and Negroes, 90-91. 
North Carolina, apprentice law 
of, 55; effect of intermar- 
riage in, 85; punishment in, 
for issuing license for inter- 
marriage, 86; for performing 
ceremony, 87; civil rights 
legislation in, 118-120; sepa- 
ration of races in, in militia, 
145; in prisons, 147; in in- 
sane asylums, 148; in public 
schools, 173-174; local tax- 
ation for schools of, 198; on 
steamboats, 214; actual serv- 
ice by Negroes on juries in, 
265-267; Negro suffrage in, 
before 1835, 283; qualifica- 
tions for voting in, 332-333. 
North Dakota, qualifications 
for voting in, 332-333. 
Northern States, intermarriage 
between Whites and Negroes 
in, 99; civil rights legisla- 
tion in, between 1865 and 
1883, 112-115; after 1883, 
120-124. 

Nurses, exempt from “Jim 
Crow ” laws, 222, 232. 


O 


Occupations, limitations upon 
Negroes in respect to, 41- 
43; in Alabama, 41-42; in 
South Carolina, 42; in Mis- 
Sissippi, 43; in Tennessee, 
43. See Contracts, Labor. 


Officers in charge of prisoners 


exempt from “Jim Crow” 
laws, 222. 


Ohio, “ Black Laws” in, 37; 


slave marriages legal in, by 
statute, 74; repeal of laws 
against intermarriage in, 90; 
race distinctions in, in sa- 
loons, 133; by insurance 
companies, 138, 139; separa- 
tion of races in public schools 
of, before 1865, 165-167; for- 
bidden at present, 185; in- 
timidation of Negroes at 
polls of, 292; qualifications 
for voting in, 332-333. 


Oklahoma, effect of intermar- 


riage in, 85; punishment in, 
for issuing license for inter- 
marriage, 86; for perform- 
ing ceremony, 87; separation 
of races in public schools of, 
174-175; in private schools 
of, 191; actual service by 
Negroes on juries in, 267; 
qualifications for voting in, 
332-333. 


Oregon, “ Black Laws” in, 38; 


carrying of firearms restrict- 
ed to Whites in, 45; effect 
of intermarriage in, 85; pun- 
ishment for performing cere- 
mony in, 88; and Fifteenth 
Amendment, 289; qualifica- 
tions for voting in, 332- 
333. 


Origin of “Jim Crow,” 208. 
Ownership of property as quali- 


fication for voting, 300-301. 
See Suffrage. 


INDEX 


P 


Partitioned cars under 
Crow ” laws, 229. 
Passengers, punishment of, for 
violating “ Jim Crow” laws, 
225; separated by race on 
street cars, 227-233. See 

“Jim Crow” laws. 

Paupers, laws concerning, 60- 
62; in South Carolina, 60- 
61; in Mississippi, 61-62; 
separation of, by race, 147. 

Payment of taxes as qualifica- 
tion for voting, 299-300. See 
Suffrage. 

Pennsylvania, race distinctions 
in cemeteries in, 137; sepa- 
ration of races in schools of, 
prohibited, 186; qualifica- 
tions for voting in, 332- 
333; 

“Persons of African Descent” 
as race name, 20. 

“Persons of Color” as race 
name, 20; intermarriage of, 
with Whites, 81. 

Persons to whom “ Jim Crow” 
laws do not apply, 222-223, 
excluded from suffrage, 310- 
312, 

Philadelphia, race distinctions 


“ Jim 


in hotels in, 124-125; race 
discriminations by labor 
unions in, 140; separation 


of races in street cars in, 
Ae 


Philippine Islands, qualifica- 
tions for voting in, 338- 
339. 


Platform, common, on 
problem, 355-356. 

Polls, intimidation of Ne- 
groes at, 291-294. See Suf- 
frage. 

Porto Rico, qualifications for 
voting in, 338-339. 

Postal clerks on railroads, not 
separated by race, 227. 

Presbyterian Church, race dis- 
tinctions in, 141. 

Prisoners separated by 
146-147, 

Private schools, separation of 
races in, 190-192. 

Problem, race, remedies for, 
354; common platform on, 
355-356. 

Proctor, H. H., on proper name 
for Negro, 23. 

Property, ownership of, as 
qualification for voting, 300- 
301. See Suffrage. 

Publie school fund, division of, 
between races, 194-199. See 
Schools. 

Punishments, for intermar- 
riage, 84-86; for issuing 
license for, 86-87; for per- 
forming ceremony of, 87-88; 
for cohabitation without in- 
termarriage, 88-89; for vio- 
lating Civil Rights Bills, 123; 
upon insurance companies for 
making race _ distinctions, 
139; for violating “Jim 
Crow” laws, 225-226, 231; 
different, for Negroes and 
Whites, 273-277; made equal 
by statute, 275. 


race 


race, 


383 


INDEX 


Q 


Qualifications for votmg, in 
United States, table of, 322- 
339; age, 297; sex, 298; 
payment of taxes, 299-300; 
ownership of property, 300- 
301; educational test, 301- 
304; “Grandfather Clauses,” 
305-308 ; “ Understanding 
Clauses,” 308-310; ‘ Charac- 
ter Clauses,” 308-310; per- 
sons excluded from suffrage, 
310-312. 

Quashing indictments because 
no Negroes on jury, 250- 
252. 

Quincy, Ill., separation of races 
in public schools, 179. 


R 


Race elements in United States, 
6. 

Railroads, separation of races 
on cars of, 216-227; punish- 
ment upon companies for vio- 
lating “Jim Crow” laws, 
225-226. See Conveyances, 
“Jim Crow” laws. 

Raleigh, Sir Walter, and Lost 
Colony, 90-91. 

Reconstruction, and “ Black 
Laws,” 62-63; and intermar- 
riage, 78-80; and separation 
of races in public convey- 
ances, 209-210. 

Reduction of representation of 
Southern States in Congress, 
287. 


Reformatories, 
races in, 147. 

Relief trains, “Jim Crow” do 
not apply to, 221. 

Remarriage of Negroes after 
Emancipation, 68-70; in 
Florida, 68; in Georgia, 69; 
in Missouri, 69. 

Remedies for race 
354-355. 

Repeal of laws against inter-. 
marriage, 89-90. 

Representation in 
reduction of, 287. 

Residence as qualification for 
voting, 316. See Suffrage. 

Restaurants, race distinctions 
in, 127-129. 

Restrictions upon movements 
of Negroes, 40-41; in Ken- 
tucky, 40; in South Carolina, 
40-41. See “ Black Laws.” 

Rhode Island, repeal of law 
against intermarriage in, 90; 
qualifications for voting in, 
332-333. 

Robeson County, N. C., and 
Croatan Indians, 91. 

Roosevelt, President, on sepa- 
ration of races in schools of 
San Francisco, 160. 


separation of 


problem, 


Congress, 


S 


Saloons, race distinctions in, 
132-133; in Atlanta, Ga., 133; 
in Nashville, Tenn., 133; in 
Louisiana, 133. 

San Francisco, exclusion of 
Japanese from public schools 


384 


INDEX 


of, 159-163; separation of 
races on street cars of, 
212. 
Schools, separation of races in, 
154-199; before 1865, 155- 
170; present extent of sepa- 


ration in, 170-190; in pri-— 


vate schools, 190-192; divi- 
sion of public school fund 
between races, 194-199. 

Scott, Dred, decision, 8; con- 
travened by Civil Rights Bill 
of 1866, 105. 

Separation of Whites and Ne- 
groes, in saloons, in Atlanta, 
Ga., 133; in Nashville, Tenn., 
133; in Louisiana, 133; in 
churches, 141-144; in mili- 
tia, 144-145; State depend- 
ents, 146-149; blind, 147; 
lunatics, 147; mutes, 147; 
paupers, 147; persons in re- 
formatories, 147; prisoners, 
147; in schools, 154-199; 
before 1865, 165-170; pres- 
ent extent of, 170-190; in 
public schools in South, 170- 
176; during Reconstruction, 
175; in States outside South, 


177-199; in private schools, . 


190-192; in public convey- 
ances, 207-233; during Re- 
construction, 209-210; on 
steamboats, 214; in railroad 
ears, 216-227; on sleeping 
cars, 219-220; in waiting 
rooms, 220-221; of postal 
elerks on mail cars, 227; on 
street cars, 227-233; in 
court rooms, 238. 


Service on juries in South by 
Negroes, 253-271. 

Sex as qualification for voting, 
298. See Suffrage. 

Sims, Thetus W., on proper 
name for Negro, 21. 

Skating rinks, race distinctions 
at, 136. 

Slander, actionable per se, to 
call White a Negro, 26-33. 
Slaughter-House Cases 
preting Fourteenth Amend- 

ment, 107-108. 

Slave marriages, reconstruction 
of, 67-75; certificates of, 70— 
73; in Kentucky, 70-72; in 
Maryland, 72; declared legal 
by statute, 73-74; in Alaba- 
ma, 73; in Arkansas, 73; in 
Texas, 73; in Illinois, 74; in 
Ohio, 74; in Virginia, 74; in 
West Virginia, 74; marriages 
between slaves and free Ne- 
groes, 74; in Tennessee, 
74; and Federal legislation, 
75. . 

Sleeping cars, separation of 
races on, 219-220. 


inter- 


Social status not a_ subject 
of legislation in Georgia, 
80. 


Soda fountains, race distinc- 
tions at, 133-134. 

South Carolina, restrictions on 
movements of Negroes in, 
40-41; limitations upon Ne- 

_ groes in respect to occupa- 
tions in, 42; keeping fire- 
arms by Negroes limited in, 
44; contracts for labor by 


26 385 


INDEX 


Negroes in, 48-53; appren- 
tice laws in, 55-57; vagran- 
cy laws in, 58-59; pauper 
laws in, 60-61; marital re- 
lations of Negroes in, estab- 
lished, 70; effect of inter- 
marriage in, 85; punishment 
in, for performing ceremony, 
88; Negroes in militia of, 
145; separation of races in 
public schools of, at present, 
175-176; on ferries, 215; 
Negroes as witnesses in, 244; 
actual service by Negroes on 
juries in, 267-268; separate 
courts for Negroes in, 272- 
273; different punishments 
for Whites and Negroes in, 
274; qualifications for voting 
in, 334-335. 

South Carolina, University of, 
open to Negroes during Re- 
construction, 175. 

South Dakota, qualifications 
for voting in, 334-335. 

Southern Education Associa- 
tion on race problem, 356. 

Southern States, civil rights 
legislation in, between 1865 
and 1883, 115-120; after 
1883, 120; present extent of 
separation of races in public 
schools of, 170-176; early 
statutes in, on Negro jury 
service, 249; actual service 
by Negroes on juries in, 253- 
271; reduction of represen- 
tation of, in Congress, 287. 

Spectator, Negro in court room 
as, 237. 


Status, social, not a subject of 
legislation in Georgia, 80; of 
marriage, 96. 

Steamboats, separation of races 
on, 214. 

Stevens, Thaddeus, and “ Black 
Laws,” 63; opposition of, to 
President Johnson’s plan of 
Reconstruction, 104. 

Stimson, Frederick J., on laws 
of Michigan against inter- 
marriage, 90. 

Street cars, separation of races 
in, 227-233. 

Suffrage, Negro, 281-339; be- 
fore 1865, 282-285; in New 
York, 283; in North Carolina 
in 1835, 283; in Tennessee in 
1834, 284; between 1865 and 
1870, 285-288; in District of 
Columbia, 286; and Four- 
teenth Amendment, 287; be- 
tween 1870 and 1890, 288-294; 
Southern Suffrage Amend- 
ments, 294-339; in insular 
possessions of United States, 
312-313; constitutionality of 
Suffrage Amendments, 313- 
317. 


T 


Taft, President, on suffrage in 
Porto Rico, 313. 

Taverns. See Restaurants. 

Taxation for ‘school purposes, 
195-199. 

Taxes, payment of, as qualifi- | 
cation for voting, 299-300. 
See Suffrage, Schools. 


386 


INDEX 


Tennessee, limitations upon Ne- 
groes in respect to occupa- 
tions in, 43; marriages be- 
tween slaves and free Negroes 
in, 74; effect given to mar- 
riages in other States in, 93; 
civil rights legislation in, 
116-118; race distinctions in 
theatres in, 134; separation 
of races in, in asylums for 
deaf and blind, 148; in pub- 
lic schools, 176; in private 
schools, 190; Negroes as wit- 
nesses in, 244; early statute 
on Negro jury service in, 
249; Negro suffrage in, in 
1834, 284; qualifications for 
voting in, 334-335. 

Texas, slave marriages legal in, 
by statute, 73; effect of in- 
termarriage in, 85; separa- 
tion of races in public schools 
of, 176; division of public 
school fund in, 199; early 
“Jim Crow” law in, 209; 
separation of races in rail- 
road cars in, 214; Negroes 
as witnesses in, 244; actual 
service by Negroes on juries 
in, 268-269; qualifications 
for voting in, 334-335. 

Theatres, race distinctions in, 
134-136. 

Thirteenth Amendment, 9. See 
Civil Rights. 

Times-Democrat, New Orleans, 
La., sued for calling white 
person “colored,” 28. 

Trains to which “Jim Crow” 
laws do not apply, 221-222. 


3) 


(3) 


Tribune, New York, on proper 
name for Negro, 22. 


AM 
“Understanding Clauses” as 
qualifications for voting, 


308-310. See Suffrage. 

Unions, labor, race discrimina- 
tions by, 140-141. 

Upper Alton, Ill., separation 
of races in public schools of, 
179. 

Utah, selling liquor to Indians 

‘prohibited in, 45; qualifica- 
tions for voting in, 334-335. 


Vv 


Vagrancy laws, 58-60; in South 
Carolina, 58-59; in Missis- 
sippi, 59-60; as race dis- 
tinctions, 275. 

Vardaman, J. K., on division 
of public school fund between 
races, 195. 

Vermont, qualifications for vot- 
ing in, 334-335. 

Virginia, contracts for labor 
by Negroes in, 47; slave mar- 
riages legal in, by statute, 
74; effect of intermarriage 
in, 86; punishment in, for 
performing ceremony, 88; 
effect given to marriages in 
other States in, 93; separa- 
tion of races in public schools 
of, 176; on steamboats in, 
215; Negroes as witnesses 
in, 245; Indians as witness- 


87 


. INDEX 


es in, 245; actual jury serv- 
ice by Negroes in, 269-271; 
intimidation of Negroes at 
polls of, 293; qualifications 
for voting in, 336-337. 

Voice of the Negro, on proper 
name for Negro, 20. 

Voting, qualifications for, in 
United States, table of, 322- 
339. See Suffrage. 


Ww 

Waiting rooms, separation of 
races in, 220-221. 

Washington, selling liquor to 
Indians prohibited in, 45; 
Negroes as witnesses in, 246; 
Indians as witnesses in, 246; 
qualifications for voting in, 
336-337. 

Washington, Booker T., on his 
ancestry, 13; on proper name 
for Negro, 21; and Hamlet, 
N. C., incident, 221; on suf- 
frage, 361. 

Washington, D. C., City of 
Refuge for miscegenating 
couples, 94; separation of 
prisoners by race in, 147; 
separate public schools in, 
189. 

West Virginia, slave marriages 
legal in, by statute, 74; ef- 
fect of intermarriage in, 86; 
punishment in, for perform- 
ing ceremony, 88; effect given 
to marriages in other States 


in, 93; Negroes in militia of, 
145; separation of races in 
asylums for insane in, 149; 
in public schools of, 186; 
qualifications for voting in, 
336-337. 

“White,” omitted from _ stat- 
utes of Florida, 116; of New 
York, 115; required on street 
ears, 231; stricken from elec- 
tion laws of Dakota Terri- 
tory, 286; from Constitution 
of Iowa, 286; from suffrage 
laws, 288; still in Maryland 
Constitution, 288, 317. 

White, John, and Lost Colony, 
90-91. 

White persons, defamation to 
call, Negroes, 26-33; inter- 
marriage between, and Chi- 
nese, 82-83; and Kanakans, 
83; and Indians, 82-83. 

Wisconsin, qualifications for 
voting in, 336-337. 

Witnesses, Negroes as, 241-247. 

Wyoming, separation of races 
in public schools of, 186; 
qualifications for voting in, 
338-339. 


x 
Xenia, Ohio, intermarriage at, 
99. 
iY 


Y. M. C. A., separation of races 
in, 144. 


388 7 


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ess Complex Sciences. By LESTER F. WARD, A.M. In 2vols. 1I2mo. 
Cloth, $4.00. 


‘* A book that will amply repay perusal. . . . Recognizing the danger in which 
sociology is, of falling into the class of dead sciences or polite amusements, Mr. Ward 
has undertaken to ‘ point out a method by which the breath of life can be breathed into 
its nostrils.’ ’’—Rochester Post-Express. 


‘Mr. Ward has evidently put great labor and thought into his two volumes, and 
has produced a work of interest and importance. He does not limit his effort to a 
contribution to the science of sociology. . . . He believes that sociology has already 
reached the point at which it can be and ought to be applied, treated as an art, and he 
urges that ‘the State’ or Government now has a'‘new, legitimate, and peculiar field for 
the exercise of intelligence to promote the welfare of men.” —New York Times. 


“A fundamental discussion of many of the most important questions of science and 
philosophy in their bearings upon social economy and human affairs in general, It 
does not treat directly these current questions in any department, and yet it furnishes 
the basis in science and in logic for the correct solution of nearly all of them. It is 
therefore exceedingly opportune, as there has never been a period in which greater ac- 
tivity existed in the direction of thoroughly working out and scientifically settling the 
problems of social, national, and individual life.’— Washington Star. 


Criminal Sociology. 


By Prof. E. Ferri. A new volume in the Criminology Series, edited 
by W. Douglas Morrison. t2mo. Cloth, $1.50. 


In this volume Professor Ferri, a distinguished member of the Italian Parliament, 
deals with the conditions which produce the criminal population, and with the methods 
by which this anti-social section of the community may be diminished. He divides th 
causes of crime into two great classes: individual and social. The individual causes 
consist of physical and mental defects; the social causes consist of social disadvantages 
of every description. His view is that the true remedy against crime is to remove indi- 
vidual defects and social disadvantages where it is possible to remove them. Heshows 
that punishment has comparatively little effect in this direction, and is apt to divert at- 
paneer Age the true remedy—the individual and social amelioration of the population 
as a whole. 


DD. APPLETON AND COMPANY, NEW “YORA, 


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UNIVERSITY OF ILLINOIS-URBANA 


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